Chapter 42. Classification Of Offenses; Sentences
TITLE 11
Crimes and Criminal Procedure
Criminal Procedure Generally
CHAPTER 42. CLASSIFICATION OF OFFENSES; SENTENCES
§ 4201. Transition provisions.
(a) Felonies are classified, for the purpose of sentence, into 7 categories:
(1) Class A felonies;
(2) Class B felonies;
(3) Class C felonies;
(4) Class D felonies;
(5) Class E felonies;
(6) Class F felonies;
(7) Class G felonies.
(b) Any crime or offense which is designated as a felony but which is not specifically given a class shall be a class G felony and shall carry the sentence provided for said class felony.
(c) The following felonies shall be designated as violent felonies:
Title 11, Section Crime
513 Conspiracy First Degree
602 Aggravated Menacing
604 Reckless Endangering First Degree
605 Abuse of a Pregnant Female in the Second Degree
606 Abuse of a Pregnant Female in the First Degree
612 Assault in the Second Degree
613 Assault in the First Degree
614 Assault on a Sports Official
615 Assault by Abuse
617 Criminal Youth Gangs
629 Vehicular Assault in the First Degree
630 Vehicular Homicide in the Second Degree
630A Vehicular Homicide in the First Degree
631 Criminally Negligent Homicide
632 Manslaughter
633 Murder by Abuse or Neglect in the Second Degree
634 Murder by Abuse or Neglect in the First Degree
635 Murder in the Second Degree
636 Murder in the First Degree
645 Promoting Suicide
768 Unlawful Sexual Contact in the Second Degree
769 Unlawful Sexual Contact in the First Degree
770 Former Unlawful Sexual Penetration in the Third Degree or
Rape in the Fourth Degree
771 Former Unlawful Sexual Penetration in the Second Degree or
Rape in the Third Degree
772 Former Unlawful Sexual Penetration in the First Degree or
Rape in the Second Degree
773 Former Unlawful Sexual Intercourse in the Third Degree or
Rape in the First Degree
774 Sexual Extortion
775 Bestiality
776 Continuous Sexual Abuse of Child
777 Dangerous Crime Against a Child
777A Sex Offender Unlawful Sexual Conduct Against a Child
778 Sexual Abuse of a Child by a Person in a Position of Trust,
Authority or Supervision in the First Degree
778A Sexual Abuse of a Child by a Person in a Position of
Trust, Authority or Supervision in the Second Degree
782 Unlawful Imprisonment in the First Degree
783 Kidnapping in the Second Degree
783A Kidnapping in the First Degree
802 Arson in the Second Degree
803 Arson in the First Degree
825 Burglary in the Second Degree
826 Burglary in the First Degree
831 Robbery in the Second Degree
832 Robbery in the First Degree
835 Carjacking in the Second Degree
836 Carjacking in the First Degree
846 Extortion
1108 Sexual Exploitation of a Child
1109 Unlawfully Dealing in Child Pornography
1112A Sexual Solicitation of a Child
1250 Assault in the First Degree Against a Law-Enforcement
Animal
1253 Escape After Conviction
1254 Assault in a Detention Facility
1256 Promoting Prison Contraband (Deadly Weapon)
1302 Riot
1304 Hate Crimes
1312 Stalking
1338 Bombs, Incendiary Devices, Molotov Cocktails and
Explosive Devices
1339 Adulteration (Causing Injury or Death)
1353 Promoting Prostitution in the First Degree
1442 Carrying a Concealed Deadly Weapon (Firearm Offense)
1444 Possessing a Destructive Weapon
1445 Unlawfully Dealing With a Dangerous Weapon
1447 Possessing a Deadly Weapon During the Commission of a
Felony
1447A Possessing a Firearm during the Commission of a Felony
1448(e) Possession of a Deadly Weapon by Persons Prohibited
(Firearm or Destructive Weapon Purchased, Owned, Possessed or Controlled by a Violent Felon).
1455 Engaging in a Firearms Transaction on Behalf of Another
(Subsequent Offense)
1449 Wearing Body Armor During the Commission of a Felony
1503 Racketeering
3533 Aggravated Act of Intimidation
Title 16, Section Crime
1136 Abuse/Mistreatment/Neglect of a Patient
4751 Manufacture/Delivery/Possession With Intent to Deliver a
Controlled or Counterfeit Controlled Substance, Manufacture or Delivery Causing Death
4752 Manufacture/Delivery/Possession With Intent to Deliver a
Controlled or Counterfeit Controlled Substance
4752A Unlawful Delivery of a Noncontrolled Substance
4753A Trafficking in Marijuana, Cocaine, Illegal Drugs,
Methamphetamine, LSD, Designer Drugs or MOMA
4754A Possession and Delivery of a Noncontrolled Prescription
Drug
4761 Distribution to Minors
4767 Distribution, Delivery or Possession of a Controlled
Substance Within 1,000 Feet of School Property
4768 Distribution, Delivery or Possession of a Controlled
Substance Within 300 Feet of a Park or Recreation Area
4774 Delivery of Drug Paraphernalia to a Minor
Title 31, Section Crime
3913 Abuse/Neglect/Exploit/Mistreat an Infirm Adult
Any attempt to commit any felony designated in this subsection as a violent felony shall also be designated as a violent felony.
67 Del. Laws, c. 130, § 6; 70 Del. Laws, c. 477, § 1; 71 Del. Laws, c. 285, § 14; 71 Del. Laws, c. 467, § 10; 72 Del. Laws, c. 34, § 5; 72 Del. Laws, c. 43, § 6; 72 Del. Laws, c. 197, § 7; 72 Del. Laws, c. 480, § 17; 74 Del. Laws, c. 106, § 8; 75 Del. Laws, c. 421, § 3[2]; 76 Del. Laws, c. 66, § 3; 76 Del. Laws, c. 343, § 5; 77 Del. Laws, c. 313, § 2; 77 Del. Laws, c. 318, § 13.;
§ 4202. Classification of misdemeanors.
(a) Misdemeanors are classified for the purpose of sentence into 2 categories:
(1) Class A misdemeanors;
(2) Class B misdemeanors.
(b) Any offense defined by statute which is not specifically designated a felony, a class A misdemeanor, a class B misdemeanor or a violation shall be an unclassified misdemeanor or an environmental misdemeanor.
67 Del. Laws, c. 130, § 6; 70 Del. Laws, c. 436, § 10.;
§ 4203. Violations.
There shall be a class of offenses denominated violations. No offense is a violation unless expressly declared to be a violation in this Criminal Code or in the statute defining the offense.
11 Del. C. 1953, § 4203; 58 Del. Laws, c. 497, § 2.;
§ 4204. Authorized disposition of convicted offenders.
(a) Every person convicted of an offense shall be sentenced in accordance with this Criminal Code, with the exception of an environmental misdemeanor as defined in § 1304 of Title 7. This section applies to all judgments of conviction, whether entered after a trial or upon a plea of guilty or nolo contendere.
(b) A person convicted of a class A felony may be sentenced to life imprisonment in accordance with § 4205 of this title, unless the conviction is for first-degree murder, in which event § 4209 of this title shall apply. Notwithstanding any other statute, a sentence under § 4209 of this title may not be suspended or reduced by the court.
(c) When a person is convicted of any offense other than a class A felony the court may take the following action:
(1) Impose a sentence involving an Accountability Level I sanction. -- Such sanctions include imposition of a fine as provided by law for the offense or placement of the offender upon unsupervised probation with or without special conditions, or with or without the imposition of a fine as provided by law for the offense;
(2) Impose a sentence involving an Accountability Level II sanction. -- Such a sanction includes a placement of the offender upon supervised probation amounting to field supervision rather than intensive supervision, with or without special conditions, or with or without the imposition of a fine as provided by law for the offense;
(3) Impose a sentence involving an Accountability Level III sanction. -- Such sanctions include placement of the offender upon intensive supervision or placement of the offender upon community service, with or without special conditions, or with or without the imposition of a fine as provided by law for the offense. Such intensive supervision shall entail at least the equivalent of 1 hour of supervision per day and no more than 56 hours of supervision per week;
(4) Impose a sentence involving an Accountability Level IV sanction. -- Such sanctions include placement of the offender upon partial confinement under house arrest under the supervision of the Department of Correction or commitment of the offender to the Department of Correction under partial confinement to a half-way house or restitution center or placement of the offender in a residential treatment facility, all with or without special conditions, and all with or without the imposition of a fine as provided by law for the offense;
(5) Impose a sentence involving an Accountability Level V sanction. -- Such a sentence consists of the commitment of the offender to the Department of Correction for a period of incarceration, with or without the imposition of a fine provided by law for the offense;
(6) Impose a period of incarceration, with or without the imposition of a fine provided by law for the offense, and placement of the offender in a less restrictive sanction, with or without special conditions, to commence when the offender is released from incarceration;
(7) Suspend the imposition or execution of sentence, or suspend a portion thereof;
(8) Impose any sentence as authorized in this subsection to include any special condition such as the payment of restitution to the victim or victims of the crime for which the offender is being sentenced and/or participation in a drug/alcohol outpatient treatment program, job training program, mental health treatment program, education program, community service program or other like programs. With regard to any such programs, the offender may be ordered to pay a fee covering, in whole or in part, the costs of such program and such fees shall be based upon the offender's ability to pay therefor;
(9) Wherever a victim of crime suffers a monetary loss as a result of the defendant's criminal conduct, the sentencing court shall impose as a special condition of the sentence that the defendant make payment of restitution to the victim in such amount as to make the victim whole, insofar as possible, for the loss sustained. Notwithstanding any law, rule or regulation to the contrary, for the purposes of ensuring the payment of restitution the court shall retain jurisdiction over the offender until the amount of restitution ordered has been paid in full;
(10) Whenever restitution is ordered pursuant to paragraph (9) of this subsection or any other applicable statute or rule, and if deemed appropriate to ensure or facilitate the collection of restitution from the defendant or if otherwise required by statute, the court may impose a sentence involving an Accountability Level I--Restitution Only sanction. Such a sanction shall be limited to the placement of the offender upon unsupervised probation, and the conditions of such probation shall be limited to those that are necessary to ensure or facilitate the collection of restitution. No offender shall be found to be in violation of the conditions of such a sanction unless the offender is found to be in violation of an applicable restitution order.
(d) Notwithstanding anything in this Criminal Code to the contrary, probation or a suspended sentence shall not be substituted for imprisonment where the statute specifically indicates that a prison sentence is a mandatory sentence, a minimum sentence, a minimum mandatory sentence or a mandatory minimum sentence, or may not otherwise be suspended.
(e) The court may authorize the payment of a fine in installments. When imposing probation the court shall direct that the offender be subject to the supervision of the Department of Correction and the court order shall specify those conditions under which the offender may remain at liberty on probation.
(f) In committing an offender to the Department of Correction the court shall fix the maximum term of incarceration.
(g) Where modification of judgment is not provided by rule of court, the court may modify a judgment within 90 days after it is ordered. Dispositions other than commitment to the Department of Correction, and such commitments which are revoked, shall not entail the loss by the offender of any civil rights, except as provided in the state Constitution.
(h) The court may direct that a person placed on probation be released on entering into a recognizance, with or without surety, during such period as the court directs, to appear and receive sentence when called upon, and, in the meantime, to keep the peace and be of good behavior.
(i) The court may, if it thinks proper, direct that the offender pay the costs of the prosecution or some portion thereof, and may further impose terms and conditions to be complied with by the offender during any period which it deems proper.
(j) At any time within the period mentioned in the recognizance, but not afterwards, the court may, upon being satisfied by information on oath that the offender has failed to observe any of the conditions of recognizance, or any of the terms or conditions of probation, issue an order for the offender's apprehension and thereupon, after proper hearing, impose sentence upon the offender.
(k)(1) Except as provided in this subsection, notwithstanding any statute, rule, regulation or guideline to the contrary, the court may direct as a condition to a sentence of imprisonment to be served at Level V or otherwise that all or a specified portion of said sentence shall be served without benefit of any form of early release, good time, furlough, work release, supervised custody or any other form of reduction or diminution of sentence.
(2) For the purposes of this subsection, statutes which authorize early release, good time, furlough, work release, supervised custody, or reduction or diminution of sentence include but are not limited to §§ 4205(h) and (i), 4206(g) and (h), 4217, 4381, 6533, 6533A [repealed] and 6537-6539 of this title.
(3) The provisions of this subsection shall be applicable only to sentences of imprisonment at Level V for 1 year or less, or to sentences of imprisonment at Level V which are equal to the statutory maximum Level V sentence available for the crime or offense.
(l) Except when the court imposes a life sentence or sentence of death, whenever a court imposes a period of incarceration at Level V custody for 1 or more offenses that totals 1 year or more, then that court must include as part of its sentence a period of custodial supervision at either Level IV, III or II for a period of not less than 6 months to facilitate the transition of the individual back into society. The 6-month transition period required by this subsection may, at the discretion of the court, be in addition to the maximum sentence of imprisonment established by the statute.
(m) As a condition of any sentence, and regardless of whether such sentence includes a period of probation or suspension of sentence, the court may order the offender to engage in a specified act or acts, or to refrain from engaging in a specified act or acts, as deemed necessary by the court to ensure the public peace, the safety of the victim or the public, the rehabilitation of the offender, the satisfaction of the offender's restitution obligation to the victim or the offender's financial obligations to the State, or for any other purpose consistent with the interests of justice. The duration of any order entered pursuant to this subsection shall not exceed the maximum term of commitment provided by law for the offense or 1 year, whichever is greater; provided that in all cases where no commitment is provided by law the duration of such order shall not exceed 1 year. A violation of any order issued pursuant to this subsection shall be prosecuted pursuant to § 1271 of this title. Any such prosecution pursuant to § 1271 of this title shall not preclude prosecution under any other provision of this Code.
(n) Whenever a court imposes a sentence inconsistent with the presumptive sentences adopted by the Sentencing Accountability Commission, such court shall set forth on the record its reasons for imposing such penalty.
11 Del. C. 1953, § 4204; 58 Del. Laws, c. 497, § 2; 62 Del. Laws, c. 259, § 2; 66 Del. Laws, c. 134, §§ 1, 2; 67 Del. Laws, c. 130, §§ 6, 17, 18; 67 Del. Laws, c. 260, § 1; 67 Del. Laws, c. 350, §§ 1, 33; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 436, § 11; 71 Del. Laws, c. 32, § 1; 71 Del. Laws, c. 98, § 5; 71 Del. Laws, c. 154, § 1; 74 Del. Laws, c. 27, §§ 1-3.;
§ 4204A. Confinement of youth convicted in Superior Court.
(a) When a child who has reached that child's 16th birthday is sentenced in Superior Court such sentence shall be served with the Department of Correction.
(b) When a child who has not reached that child's 16th birthday is sentenced in Superior Court to a period of incarceration, such sentence shall initially be served in a juvenile facility upon imposition of the sentence and such child shall remain in the custody of or be transferred forthwith to the Division of Youth Rehabilitative Services until the child's 16th birthday, at which time such child shall be transferred forthwith to the Department of Correction to serve the remaining portion of said sentence.
(c) When a child (youth) has been lawfully sentenced in Superior Court or has been lawfully transferred to the Department of Correction (DOC), DOC shall be exclusively responsible for all aspects of the child's (youth's) care, custody and control, including services associated with those responsibilities. The Department of Correction, and not the Department of Services for Children, Youth and Their Families shall have authority or jurisdiction of such child (youth).
69 Del. Laws, c. 353, § 1; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 597, § 2; 71 Del. Laws, c. 5, §§ 2-4; 72 Del. Laws, c. 149, § 2.;
§ 4205. Sentence for felonies.
(a) A sentence of incarceration for a felony shall be a definite sentence.
(b) The term of incarceration which the court may impose for a felony is fixed as follows:
(1) For a class A felony not less than 15 years up to life imprisonment to be served at Level V except for conviction of first-degree murder in which event § 4209 of this title shall apply.
(2) For a class B felony not less than 2 years up to 25 years to be served at Level V.
(3) For a class C felony up to 15 years to be served at Level V.
(4) For a class D felony up to 8 years to be served at Level V.
(5) For a class E felony up to 5 years to be served at Level V.
(6) For a class F felony up to 3 years to be served at Level V.
(7) For a class G felony up to 2 years to be served at Level V.
(c) In the case of the conviction of any felony, the court shall impose a sentence of Level V incarceration where a minimum sentence is required by subsection (b) of this section and may impose a sentence of Level V incarceration up to the maximum stated in subsection (b) of this section for each class of felony.
(d) Where a minimum, mandatory, mandatory minimum or minimum mandatory sentence is required by subsection (b) of this section, such sentence shall not be subject to suspension by the court.
(e) Where no minimum sentence is required by subsection (b) of this section, or with regard to any sentence in excess of the minimum required sentence, the court may suspend that part of the sentence for probation or any other punishment set forth in § 4204 of this title.
(f) Any term of Level V incarceration imposed under this section must be served in its entirety at Level V, reduced only for earned "good time" as set forth in § 4381 of this title.
(g) No term of Level V incarceration imposed under this section shall be served in other than a full custodial Level V institutional setting unless such term is suspended by the court for such other level sanction.
(h) The Department of Corrections, the remainder of this section notwithstanding, may house Level V inmates at a Level IV work release center or halfway house during the last 180 days of their sentence; provided, however, that the first 5 days of any sentence to Level V, not suspended by the court, must be served at Level V.
(i) The Department of Corrections, the remainder of this section notwithstanding, may grant Level V inmates 48-hour furloughs during the last 120 days of their sentence to assist in their adjustment to the community.
(j) No sentence to Level V incarceration imposed pursuant to this section is subject to parole.
(k) In addition to the penalties set forth above, the court may impose such fines and penalties as it deems appropriate.
(l) In all sentences for less than 1 year the court may order that more than 5 days be served in Level V custodial setting before the Department may place the offender in Level IV custody.
67 Del. Laws, c. 130, § 6; 67 Del. Laws, c. 260, § 1; 71 Del. Laws, c. 98, § 6; 74 Del. Laws, c. 106, §§ 9, 10.;
§ 4205A. Additional penalty for serious sex offenders or pedophile offenders.
(a) Notwithstanding any provision of this chapter or any other laws to the contrary, a defendant convicted of any crime set forth in § 771(a)(2), § 772, § 773, § 777, § 777A, § 778(a) or (b) of this title shall be sentenced to not less than 25 years up to life imprisonment to be served at Level V if:
(1) The defendant has previously been convicted or adjudicated delinquent of any sex offense set forth in this title and classified as a class A or B felony, or any similar offense under the laws of another state, the United States or any territory thereof; or
(2) The victim of the instant offense is a child less than 14 years of age.
(b) A fiscal report on the financial impact of this legislation shall be submitted by the Criminal Justice Coordinator or designee to the Controller General and Chairpersons of the Joint Finance Committee no later than March 15, 2008, after consultation with the Chief Judge of Superior Court, the Commissioner of Corrections, the Attorney General and Chief Public Defender or their designee.
75 Del. Laws, c. 438, § 1; 77 Del. Laws, c. 318, § 14.;
§ 4206. Sentence for misdemeanors.
(a) The sentence for a class A misdemeanor may include up to 1 year incarceration at Level V and such fine up to $2,300, restitution or other conditions as the court deems appropriate.
(b) The sentence for a class B misdemeanor may include up to 6 months incarceration at Level V and such fine up to $1,150, restitution or other conditions as the court deems appropriate.
(c) The sentence for an unclassified misdemeanor shall be a definite sentence fixed by the court in accordance with the sentence specified in the law defining the offense. If no sentence is specified in such law, the sentence may include up to 30 days incarceration at Level V and such fine up to $575, restitution or other conditions as the court deems appropriate. Notwithstanding the foregoing, in any municipality with a population greater than 50,000 people, any offense under the building, housing, health or sanitation code which is classified therein as a misdemeanor, the sentence for any person convicted of such a misdemeanor offense shall include the following fines and may include restitution or such other conditions as the court deems appropriate:
(1) For the 1st conviction: no less than $250, nor more than $1,000;
(2) For the 2nd conviction for the same offense; no less than $500, nor more than $2,500; and
(3) For all subsequent convictions for the same offense: no less than $1,000 nor more than $5,000.
In any municipality with a population greater than 50,000 people, a conviction for a misdemeanor offense, which is defined as a "continuing" or "ongoing" violation, shall be considered a single conviction for the purposes of paragraphs (1)-(3) of this subsection. For all convictions subsequent to the 2nd, the minimum fines required herein shall not be suspended, but such amounts imposed over the minimum may be suspended or subject to such other conditions as the court deems appropriate. The provisions of this subsection relating to municipalities with a population greater than 50,000 people shall not apply to offenses or convictions involving single family residences that are occupied by an owner of the property.
(d) The court may suspend any sentence imposed under this section for probation or any of the other sanctions set forth in § 4204 of this title.
(e) Any term of Level V incarceration imposed under this section must be served in its entirety at Level V, reduced only for earned "good time" as set forth in § 4381 of this title.
(f) No term of Level V incarceration imposed under this section shall be served in other than a full custodial Level V institutional setting unless such term is suspended by the court for such other level sanction.
(g) The Department of Corrections, the remainder of this section notwithstanding, may house Level V inmates at a Level IV work release center or halfway house during the last 180 days of their sentence; provided, however, that the first 5 days of any sentence to Level V, not suspended by the court, must be served at Level V.
(h) The Department of Corrections, the remainder of this section notwithstanding, may grant Level V inmates 48-hour furloughs during the last 120 days of their sentence to assist in their adjustment to the community.
(i) Any sentence for issuing a worthless check pursuant to § 900 of this title shall require restitution to the person to whom the check was given. For the purposes of this subsection, restitution shall mean the amount for which the check was written plus a service fee of $30 for processing a worthless check, or a fee of $50 if more than 1 check by same person was processed.
(j) In all sentences for less than 1 year the court may order that more than 5 days be served in Level V custodial setting before the Department may place the offender in Level IV custody.
66 Del. Laws, c. 253, § 1; 67 Del. Laws, c. 130, § 6; 67 Del. Laws, c. 260, § 1; 67 Del. Laws, c. 350, § 2; 68 Del. Laws, c. 9, § 5; 74 Del. Laws, c. 153, § 1.;
§ 4207. Sentences for violations.
(a) The Court may impose a fine of up to $345 for the first offense of any violation, up to $690 for the second offense of that same violation and up to $1,150 for the third offense of the same violation; provided, that only violations which occurred within 5 years of the violation for which sentence is imposed shall be considered in determining sentence.
(b) The Court may impose a period of Level I probation up to 1 year for any violation.
67 Del. Laws, c. 130, § 6; 67 Del. Laws, c. 260, § 1.;
§ 4208. Fines for organizations.
A sentence to pay a fine, when imposed on an organization, shall be the amount specified in the law setting forth the offense if a penalty is specified in that law, or, if there is no specific penalty defined in the law setting forth the offense, a sentence to pay a fine when imposed on an organization shall be as follows:
(1) For a felony or a misdemeanor resulting in death or serious physical injury, such fine as the court deems reasonable and appropriate;
(2) For a felony that does not result in death or serious physical injury, not more than $500,000;
(3) For a class A misdemeanor that results in physical injury, not more than $250,000;
(4) For a class A misdemeanor that does not result in physical injury, not more than $100,000;
(5) For a class B misdemeanor, class C or unclassified misdemeanor that results in physical injury, not more than $75,000;
(6) For a class B misdemeanor, class C or unclassified misdemeanor that does not result in physical injury, not more than $50,000; or
(7) For a violation, not more than $10,000.
If the defendant derives pecuniary gain from the offense, or if the offense results in pecuniary loss or damage to a person or organization other than the defendant, the defendant may be fined an amount equal to 3 times the amount of the pecuniary gain or 3 times the value of the pecuniary loss or damage incurred in lieu of the penalties set forth in paragraphs (1) -- (7) of this section.
11 Del. C. 1953, § 4208; 58 Del. Laws, c. 497, § 2; 68 Del. Laws, c. 9, §§ 3, 4; 74 Del. Laws, c. 71, § 6.;
§ 4209. Punishment, procedure for determining punishment, review of punishment and method of punishment for first-degree murder.
(a) Punishment for first-degree murder. -- Any person who is convicted of first-degree murder shall be punished by death or by imprisonment for the remainder of the person's natural life without benefit of probation or parole or any other reduction, said penalty to be determined in accordance with this section.
(b) Separate hearing on issue of punishment for first-degree murder. --
(1) Upon a conviction of guilt of a defendant of first-degree murder, the Superior Court shall conduct a separate hearing to determine whether the defendant should be sentenced to death or to life imprisonment without benefit of probation or parole as authorized by subsection (a) of this section. If the defendant was convicted of first-degree murder by a jury, this hearing shall be conducted by the trial judge before that jury as soon as practicable after the return of the verdict of guilty. Alternate jurors shall not be excused from the case prior to submission of the issue of guilt to the trial jury and may, but need not be, separately sequestered until a verdict on guilt is entered. If the verdict of the trial jury is guilty of first-degree murder said alternates shall sit as alternate jurors on the issue of punishment. If, for any reason satisfactory to the Court, any member of the trial jury is excused from participation in the hearing on punishment, the trial judge shall replace such juror or jurors with alternate juror or jurors. If a jury of 12 jurors cannot participate in the hearing a separate and new jury, plus alternates, shall be selected for the hearing in accordance with the applicable rules of the Superior Court and laws of Delaware, unless the defendant or defendants and the State stipulate to the use of a lesser number of jurors.
(2) If the defendant was convicted of first-degree murder by the Court, after a trial and waiver of a jury trial or after a plea of guilty or nolo contendere, the hearing shall be conducted by the trial judge before a jury, plus alternates, empaneled for that purpose and selected in accordance with the applicable rules of the Superior Court and laws of Delaware, unless said jury is waived by the State and the defendant in which case the hearing shall be conducted, if possible, by and before the trial judge who entered the finding of guilty or accepted the plea of guilty or nolo contendere.
(c) Procedure at punishment hearing. --
(1) The sole determination for the jury or judge at the hearing provided for by this section shall be the penalty to be imposed upon the defendant for the conviction of first-degree murder. At the hearing, evidence may be presented as to any matter that the Court deems relevant and admissible to the penalty to be imposed. The evidence shall include matters relating to any mitigating circumstance and to any aggravating circumstance, including, but not limited to, those aggravating circumstances enumerated in subsection (e) of this section. Notice in writing of any aggravating circumstances and any mitigating circumstances shall be given to the other side by the party seeking to introduce evidence of such circumstances prior to the punishment hearing, and after the verdict on guilt, unless in the discretion of the Court such advance notice is dispensed with as impracticable. The record of any prior criminal convictions and pleas of guilty or pleas of nolo contendere of the defendant or the absence of any such prior criminal convictions and pleas shall also be admissible in evidence.
(2) At the hearing the Court shall permit argument by the State, the defendant and/or the defendant's counsel, on the punishment to be imposed. Such argument shall consist of opening statements by each, unless waived, opening summation by the State, rebuttal summation by the defendant and/or the defendant's counsel and closing summation by the State.
(3)a. Upon the conclusion of the evidence and arguments the judge shall give the jury appropriate instructions and the jury shall retire to deliberate and report to the Court an answer to the following questions:
1. Whether the evidence shows beyond a reasonable doubt the existence of at least 1 aggravating circumstance as enumerated in subsection (e) of this section; and
2. Whether, by a preponderance of the evidence, after weighing all relevant evidence in aggravation or mitigation which bear upon the particular circumstances or details of the commission of the offense and the character and propensities of the offender, the aggravating circumstances found to exist outweigh the mitigating circumstances found to exist.
b.1. The jury shall report to the Court its finding on the question of the existence of statutory aggravating circumstances as enumerated in subsection (e) of this section. In order to find the existence of a statutory aggravating circumstance as enumerated in subsection (e) of this section beyond a reasonable doubt, the jury must be unanimous as to the existence of that statutory aggravating circumstance. As to any statutory aggravating circumstances enumerated in subsection (e) of this section which were alleged but for which the jury is not unanimous, the jury shall report the number of the affirmative and negative votes on each such circumstance.
2. The jury shall report to the Court by the number of the affirmative and negative votes its recommendation on the question as to whether, by a preponderance of the evidence, after weighing all relevant evidence in aggravation or mitigation which bear upon the particular circumstances or details of the commission of the offense and the character and propensities of the offender, the aggravating circumstances found to exist outweigh the mitigating circumstances found to exist.
(4) In the instructions to the jury the Court shall include instructions for it to weigh and consider any mitigating circumstances or aggravating circumstances and any of the statutory aggravating circumstances set forth in subsection (e) of this section which may be raised by the evidence. The jury shall be instructed to weigh any mitigating factors against the aggravating factors.
(d) Determination of sentence. --
(1) If a jury is impaneled, the Court shall discharge that jury after it has reported its findings and recommendation to the Court. A sentence of death shall not be imposed unless the jury, if a jury is impaneled, first finds unanimously and beyond a reasonable doubt the existence of at least 1 statutory aggravating circumstance as enumerated in subsection (e) of this section. If a jury is not impaneled, a sentence of death shall not be imposed unless the Court finds beyond a reasonable doubt the existence of at least 1 statutory aggravating circumstance as enumerated in subsection (e) of this section. If a jury has been impaneled and if the existence of at least 1 statutory aggravating circumstance as enumerated in subsection (e) of this section has been found beyond a reasonable doubt by the jury, the Court, after considering the findings and recommendation of the jury and without hearing or reviewing any additional evidence, shall impose a sentence of death if the Court finds by a preponderance of the evidence, after weighing all relevant evidence in aggravation or mitigation which bears upon the particular circumstances or details of the commission of the offense and the character and propensities of the offender, that the aggravating circumstances found by the Court to exist outweigh the mitigating circumstances found by the Court to exist. The jury's recommendation concerning whether the aggravating circumstances found to exist outweigh the mitigating circumstances found to exist shall be given such consideration as deemed appropriate by the Court in light of the particular circumstances or details of the commission of the offense and the character and propensities of the offender as found to exist by the Court. The jury's recommendation shall not be binding upon the Court. If a jury has not been impaneled and if the existence of at least 1 statutory aggravating circumstance as enumerated in subsection (e) of this section has been found beyond a reasonable doubt by the Court, it shall impose a sentence of death if the Court finds by a preponderance of the evidence, after weighing all relevant evidence in aggravation or mitigation which bears upon the particular circumstances or details of the commission of the offense and the character and propensities of the offender, that the aggravating circumstances found by the Court to exist outweigh the mitigating circumstances found by the Court to exist.
(2) Otherwise, the Court shall impose a sentence of imprisonment for the remainder of the defendant's natural life without benefit of probation or parole or any other reduction.
(3)a. Not later than 90 days before trial the defendant may file a motion with the Court alleging that the defendant was seriously mentally retarded at the time the crime was committed. Upon the filing of the motion, the Court shall order an evaluation of the defendant for the purpose of providing evidence of the following:
1. Whether the defendant has a significantly subaverage level of intellectual functioning;
2. Whether the defendant's adaptive behavior is substantially impaired; and
3. Whether the conditions described in paragraphs (d)(1) and (d)(2) of this section existed before the defendant became 18 years of age.
b. During the hearing authorized by subsections (b) and (c) of this section, the defendant and the State may present relevant and admissible evidence on the issue of the defendant's alleged mental retardation, or in rebuttal thereof. The defendant shall have the burden of proof to demonstrate by clear and convincing evidence that the defendant was seriously mentally retarded at the time of the offense. Evidence presented during the hearing shall be considered by the jury in making its recommendation to the Court pursuant to paragraph (c)(3) of this section as to whether the aggravating circumstances found to exist outweigh the mitigating circumstances found to exist. The jury shall not make any recommendation to the Court on the question of whether the defendant was seriously mentally retarded at the time the crime was committed.
c. If the defendant files a motion pursuant to this paragraph claiming serious mental retardation at the time the crime was committed, the Court, in determining the sentence to be imposed, shall make specific findings as to the existence of serious mental retardation at the time the crime was committed. If the Court finds that the defendant has established by clear and convincing evidence that the defendant was seriously mentally retarded at the time the crime was committed, notwithstanding any other provision of this section to the contrary, the Court shall impose a sentence of imprisonment for the remainder of the defendant's natural life without benefit of probation or parole or any other reduction. If the Court determines that the defendant has failed to establish by clear and convincing evidence that the defendant was seriously mentally retarded at the time the crime was committed, the Court shall proceed to determine the sentence to be imposed pursuant to the provisions of this subsection. Evidence on the question of the defendant's mental retardation presented during the hearing shall be considered by the Court in its determination pursuant to this section as to whether the aggravating circumstances found to exist outweigh the mitigating circumstances found to exist.
d. When used in this paragraph:
1. "Adaptive behavior" means the effectiveness or degree to which the individual meets the standards of personal independence expected of the individual's age group, sociocultural background and community setting, as evidenced by significant limitations in not less than 2 of the following adaptive skill areas: communication, self-care, home living, social skills, use of community resources, self-direction, functional academic skills, work, leisure, health or safety;
2. "Seriously mentally retarded" or "serious mental retardation" means that an individual has significantly subaverage intellectual functioning that exists concurrently with substantial deficits in adaptive behavior and both the significantly subaverage intellectual functioning and the deficits in adaptive behavior were manifested before the individual became 18 years of age; and
3. "Significantly subaverage intellectual functioning" means an intelligent quotient of 70 or below obtained by assessment with 1 or more of the standardized, individually administered general intelligence tests developed for the purpose of assessing intellectual functioning.
(4) After the Court determines the sentence to be imposed, it shall set forth in writing the findings upon which its sentence is based. If a jury is impaneled, and if the Court's decision as to whether the aggravating circumstances found to exist outweigh the mitigating circumstances found to exist differs from the jury's recommended finding, the Court shall also state with specificity the reasons for its decision not to accept the jury's recommendation.
(e) Aggravating circumstances. --
(1) In order for a sentence of death to be imposed, the jury, unanimously, or the judge where applicable, must find that the evidence established beyond a reasonable doubt the existence of at least 1 of the following aggravating circumstances which shall apply with equal force to accomplices convicted of such murder:
a. The murder was committed by a person in, or who has escaped from, the custody of a law-enforcement officer or place of confinement.
b. The murder was committed for the purpose of avoiding or preventing an arrest or for the purpose of effecting an escape from custody.
c. The murder was committed against any law-enforcement officer, corrections employee, firefighter, paramedic, emergency medical technician, fire marshal or fire police officer while such victim was engaged in the performance of official duties.
d. The murder was committed against a judicial officer, a former judicial officer, Attorney General, former Attorney General, Assistant or Deputy Attorney General or former Assistant or Deputy Attorney General, State Detective or former State Detective, Special Investigator or former Special Investigator, during, or because of, the exercise of an official duty.
e. The murder was committed against a person who was held or otherwise detained as a shield or hostage.
f. The murder was committed against a person who was held or detained by the defendant for ransom or reward.
g. The murder was committed against a person who was a witness to a crime and who was killed for the purpose of preventing the witness's appearance or testimony in any grand jury, criminal or civil proceeding involving such crime, or in retaliation for the witness's appearance or testimony in any grand jury, criminal or civil proceeding involving such crime.
h. The defendant paid or was paid by another person or had agreed to pay or be paid by another person or had conspired to pay or be paid by another person for the killing of the victim.
i. The defendant was previously convicted of another murder or manslaughter or of a felony involving the use of, or threat of, force or violence upon another person.
j. The murder was committed while the defendant was engaged in the commission of, or attempt to commit, or flight after committing or attempting to commit any degree of rape, unlawful sexual intercourse, arson, kidnapping, robbery, sodomy or burglary.
k. The defendant's course of conduct resulted in the deaths of 2 or more persons where the deaths are a probable consequence of the defendant's conduct.
l. The murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, use of an explosive device or poison or the defendant used such means on the victim prior to murdering the victim.
m. The defendant caused or directed another to commit murder or committed murder as an agent or employee of another person.
n. The defendant was under a sentence of life imprisonment, whether for natural life or otherwise, at the time of the commission of the murder.
o. The murder was committed for pecuniary gain.
p. The victim was pregnant.
q. The victim was severely handicapped or severely disabled.
r. The victim was 62 years of age or older.
s. The victim was a child 14 years of age or younger, and the murder was committed by an individual who is at least 4 years older than the victim.
t. At the time of the killing, the victim was or had been a nongovernmental informant or had otherwise provided any investigative, law enforcement or police agency with information concerning criminal activity, and the killing was in retaliation for the victim's activities as a nongovernmental informant or in providing information concerning criminal activity to an investigative, law enforcement or police agency.
u. The murder was premeditated and the result of substantial planning. Such planning must be as to the commission of the murder itself and not simply as to the commission or attempted commission of any underlying felony.
v. The murder was committed for the purpose of interfering with the victim's free exercise or enjoyment of any right, privilege or immunity protected by the First Amendment to the United States Constitution, or because the victim has exercised or enjoyed said rights, or because of the victim's race, religion, color, disability, national origin or ancestry.
(2) In any case where the defendant has been convicted of murder in the first degree in violation of any provision of § 636(a)(2)-(6) of this title, that conviction shall establish the existence of a statutory aggravating circumstance and the jury, or judge where appropriate, shall be so instructed. This provision shall not preclude the jury, or judge where applicable, from considering and finding the statutory aggravating circumstances listed in this subsection and any other aggravating circumstances established by the evidence.
(f) Method and imposition of sentence of death. -- The imposition of a sentence of death shall be upon such terms and conditions as the trial court may impose in its sentence, including the place, the number of witnesses which shall not exceed 10, and conditions of privacy, and shall occur between the hours of 12:01 a.m. and 3:00 a.m. on the date set by the trial court. The trial court shall permit one adult member of the immediate family of the victim, as defined in § 4350(e) of this title, or the victim's designee, to witness the execution of a sentence of death pursuant to the rules of the court, if the family provides reasonable notice of its desire to be so represented. Punishment of death shall, in all cases, be inflicted by intravenous injection of a substance or substances in a lethal quantity sufficient to cause death and until such person sentenced to death is dead, and such execution procedure shall be determined and supervised by the Commissioner of the Department of Correction. The administration of the required lethal substance or substances required by this section shall not be construed to be the practice of medicine and any pharmacist or pharmaceutical supplier is authorized to dispense drugs to the Commissioner or the Commissioner's designee, without prescription, for carrying out the provisions of this section, notwithstanding any other provision of law. Such sentence may not be carried out until final review thereof is had by the Delaware Supreme Court as provided for in subsection (g) of this section. The Court or the Governor may suspend the execution of the sentence until a later date to be specified, solely to permit completion of the process of judicial review of the conviction.
If the execution of the sentence of death as provided above is held unconstitutional by a court of competent jurisdiction, then punishment of death shall, in all cases, be inflicted by hanging by the neck. The imposition of a sentence of death shall be upon such terms and conditions as the trial court may impose in its sentence, including the place, the number of witnesses and conditions of privacy. Such sentence may not be carried out until final review thereof is had by the Delaware Supreme Court as provided in subsection (g) of this section. The Court or the Governor may suspend the execution of the sentence until a later date to be specified, solely to permit completion of the process of judicial review of the conviction.
(g) Automatic review of death penalty by Delaware Supreme Court. --
(1) Whenever the death penalty is imposed, and upon the judgment becoming final in the trial court, the recommendation on and imposition of that penalty shall be reviewed on the record by the Delaware Supreme Court. Absent an appeal having been taken by the defendant upon the expiration of 30 days after the sentence of death has been imposed, the Clerk of the Superior Court shall require a complete transcript of the punishment hearing to be prepared promptly and within 10 days after receipt of that transcript the clerk shall transmit the transcript, together with a notice prepared by the clerk, to the Delaware Supreme Court. The notice shall set forth the title and docket number of the case, the name of the defendant, the name and address of any attorney and a narrative statement of the judgment, the offense and the punishment prescribed. The Court shall, if necessary, appoint counsel to respond to the State's positions in the review proceedings.
(2) The Supreme Court shall limit its review under this section to the recommendation on and imposition of the penalty of death and shall determine:
a. Whether, considering the totality of evidence in aggravation and mitigation which bears upon the particular circumstances or details of the offense and the character and propensities of the offender, the death penalty was either arbitrarily or capriciously imposed or recommended, or disproportionate to the penalty recommended or imposed in similar cases arising under this section.
b. Whether the evidence supports the jury's or the judge's finding of a statutory aggravating circumstance as enumerated in subsection (e) of this section and, where applicable, § 636(a)(2)-(6) of this title.
(3) The Supreme Court shall permit the defendant and the State to submit briefs within the time provided by the Court, and permit them to present oral argument to the Court.
(4) With regard to review of the sentence in accordance with this subsection, the Court shall:
a. Affirm the sentence of death.
b. Set aside the sentence of death and remand for correction of any errors occurring during the hearing and for imposition of the appropriate penalty. Such errors shall not affect the determination of guilt and shall not preclude the reimposition of death where appropriately determined after a new hearing on punishment.
c. Set forth its findings as to the reasons for its actions.
(h) Ordinary review not affected by section. -- Any error in the guilt phase of the trial may be raised as provided by law and rules of court and shall be in addition to the review of punishment provided by this section.
This act shall apply to all defendants tried, retried, sentenced or re-sentenced after July 15, 2003.
11 Del. C. 1953, § 4209; 58 Del. Laws, c. 497, § 2; 59 Del. Laws, c. 284, § 2; 61 Del. Laws, c. 41, § 1; 63 Del. Laws, c. 357, § 1; 65 Del. Laws, c. 281, § 1; 65 Del. Laws, c. 494, § 4; 66 Del. Laws, c. 269, § 29; 68 Del. Laws, c. 189, §§ 1-4; 69 Del. Laws, c. 206, § 1; 69 Del. Laws, c. 439, § 1; 70 Del. Laws, c. 33, § 1; 70 Del. Laws, c. 137, § 1; 70 Del. Laws, c. 182, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 430, § 2; 73 Del. Laws, c. 423, §§ 1, 2, 3, 4, 5; 73 Del. Laws, c. 424, § 1; 74 Del. Laws, c. 174, §§ 1, 2; 75 Del. Laws, c. 166, § 1; 77 Del. Laws, c. 191, § 2.;
§ 4209A. [Reserved.]
.
§ 4210. Arrest and disposition of intoxicated persons.
(a) Any intoxicated person taken into custody for a violation of § 1315 of this title shall immediately be taken to a detoxification center where the person shall be admitted as a patient.
(1) The arresting officer shall leave a summons for such intoxicated person with the chief medical officer of the detoxification center ordering such intoxicated person to appear before a justice of the peace at a date not to exceed a period of 5 days from the date of admission to the center.
(2) The intoxicated person shall be given a physical examination to determine the possible existence of any disease or ailment which threatens the health or safety of such individual; and upon a finding of any such disease or ailment, the medical staff of the detoxification center shall give such treatment as it deems necessary and practicable.
(b) Upon regaining sobriety and being informed of the person's physical condition, the person in custody shall inform the chief medical officer of the detoxification center as to whether, until such time as the person is to appear for trial, the person wishes to remain a patient or be released from custody.
(c) Should the person in custody validly consent to remain as a patient and to undergo testing procedures, the person shall be tested to determine if the person is a chronic alcoholic. A diagnosis of chronic alcoholism shall serve as an affirmative defense to violations of § 1315 of this title.
(d) Should it be shown to the satisfaction of the court that the person accused of intoxication suffers from chronic alcoholism, the person shall be acquitted of the charge of drunkenness and:
(1) Released from custody; or
(2) Temporarily released from custody under such conditions of treatment as the court may prescribe; such period of temporary release shall not exceed 1 year after which defendant shall be unconditionally released.
11 Del. C. 1953, § 4210; 58 Del. Laws, c. 497, § 2; 70 Del. Laws, c. 186, § 1.;
§ 4211. Payment of expenses.
Any person treated under § 4210 of this title shall, any law to the contrary notwithstanding, be responsible for the incurred expenses, and shall be billed for same by the Department of Mental Health.
11 Del. C. 1953, § 4211; 58 Del. Laws, c. 497, § 2.;
§ 4212. Definitions relating to §§ 4210 and 4211.
For the purposes of §§ 4210 and 4211 of this title, the following words and phrases shall have the meanings respectively ascribed to them:
(1) "Chronic alcoholic" shall mean a person who compulsively and habitually uses alcoholic beverages to the extent that they injure the person's health and interfere with the person's social and economic functioning.
(2) "Detoxification center" shall mean a medical facility, approved by the Department of Health and Social Services, or its successor, which shall provide appropriate medical services for intoxicated persons, including initial examination, diagnosis and temporary treatment.
(3) "Intoxicated person" shall mean a person whose powers of self-control have been substantially impaired because of the consumption of alcohol.
(4) "Sobriety" shall mean an individual's state of being when not under the influence of alcohol.
(5) "Valid consent" shall mean the voluntary giving of assent to testing procedures by a legally competent person; in the case of a minor or incompetent, such assent shall be obtained from a parent or guardian of the individual or in the absence of either, a person in loco parentis, to undergo testing.
11 Del. C. 1953, § 4212; 58 Del. Laws, c. 497, § 2; 70 Del. Laws, c. 186, § 1.;
§ 4213. Arrest of persons under the influence of drugs; drug detoxification centers.
(a) For purposes of this section only, the following phrases shall have meanings respectively ascribed to them:
(1) "A person under the influence of drugs" shall mean a person whose powers of self-control have been substantially impaired because of the consumption of a drug described in Chapter 47 of Title 16.
(2) "Drug abuser" shall mean any person who compulsively and habitually uses drugs to the extent that they injure the person's health and interfere with the person's social and economic functioning.
(b) The Director of the Division of Drug Abuse Control shall designate certain hospital, clinic or other treatment facilities as "drug detoxification centers." The Director shall so designate such a facility only when the Director is satisfied that the facility has the medical and other staff, as well as the equipment, to diagnose and treat drug abusers as provided for in this section.
(c) Upon arrest for any crime which is not a felony under this title or Title 16, an arrestee who believes that the arrestee is under the influence of drugs as defined in subsection (a) of this section shall have the right to request immediate admission to a drug detoxification center. Upon such request, the arresting officer shall, as soon as transportation is available and as soon as conditions at the scene of the arrest permit, arrange to have the arrestee transported to the nearest available drug detoxification center.
(1) No expression of a desire to be admitted to a drug detoxification center shall be admissible in evidence in any criminal prosecution against the arrestee.
(2) Notwithstanding any provision of this Code to the contrary, no arrestee shall be heard to object in any court to failure to arraign the arrestee before a magistrate during the period of transportation to or stay in a drug detoxification center, or for a reasonable time not to exceed 24 hours after release.
(3) An arresting officer shall, when the officer suspects an arrestee of being under the influence of drugs, inform the arrestee of the rights under this section.
(4) No arrestee may revoke a request to