Opinion
I.D. No. 0106017754
Submitted: February 28, 2002
Decided: April 8, 2002
James Kriner, Esquire Department of Justice, Dover, Delaware.
William C. Wagner, II, Esquire, Smyrna, Delaware.
Dear Counsel:
The Court has before it defendant's pre-sentencing memo dated February 28, 2002 which was presented on the same date moving this Court to consider the present conviction for driving under the influence as a second offense rather than a fourth offense under Title 21 Del. C. § 4177 of the Delaware Code.
The record shows that the defendant has three prior driving under the influence convictions from 1984, 1993 and 1999. Defendant claims that based on the Court records that are available for the 1984 and 1993 convictions, the State cannot show that there is a knowing and intelligent waiver of defendant's constitutional rights, including his right to be represented by counsel and thus these two prior convictions cannot be used for enhanced driving under the influence penalty consideration. The record further shows that the defendant advised the State and this Court that the validity of the previous convictions would be challenged at the time of entry of the plea on January 3, 1993.
The proviso of 21 Del. C. § 4177(B)(e)(5) is very specific in requiring the defendant to first successfully challenge the prior convictions in the Court where the convictions arose and apparently this was not done. A review of the 70 Del. Laws, Chapter 76, and, in particular, the synopsis, makes it clear that the intent was not to accept challenges to earlier convictions at sentencing. Furthermore, regardless of whether or not defendant was represented by (or waived) counsel in his prior misdemeanor proceedings, any convictions may still be used to enhance the sentence on a subsequent offense. Nichols v. United States, 511 U.S. 738, 746 (1994). This is because the State had no obligation to provide counsel to defendant in prior misdemeanor proceedings where he was not sentenced to actual imprisonment. Id. at 749.
Moreover, a conviction for driving under the influence which occurs as part of a judicial proceeding is not rendered invalid because the defendant was not given a judicial warning of the subsequent penalties triggered by the first conviction. State v. Carr, 641 A.2d 833 (Del. 1994). Although defendant appears to raise an issue as to whether or not certain prior convictions resulted from a valid judicial proceeding under Krewson v. State, 522 A.2d 840 (Del. 1988), I am constrained because of the requirements of Section 4177(B)(e)(5) which was enacted subsequent to Krewson and Carr. Section 4177(B)(e)(5) sets forth the procedures under which such challenges must be made. Therefore, I am going to sentence the defendant for a fourth offense.
IT IS SO ORDERED.