8 June 1999
The Honorable Edward J. Freel
Secretary of State
Department of State
401 Federal Street, Suite 3
Dover, Delaware 19901
Re: Whether Driving Under the Influence Offenses
May Be Pardoned
Dear Secretary Freel:
You have asked for an Opinion of the Attorney General on the question of whether a first or second offense for driving under the influence can be subject to a pardon. For the reasons stated below, we conclude that applications for pardons of such offenses may be considered by the Board of Pardons.
Driving under the influence of alcohol or drugs ("DUI") is prohibited by 21 Del. C. § 4177. As your letter notes, over the years, the Board has felt that offenses under Title 21 (the Motor Vehicle Code) should be considered motor vehicle "violations" rather than crimes and not subject to the pardon process. However, a careful review of the relevant statutes indicates that a first or second DUI offense is a misdemeanor, which is a crime which may be pardoned under appropriate circumstances.
The Honorable Edward J. Freel
Page Two
8 June 1999
Initially, it should be noted that Delaware law appears to include a "violation" under its definition of a "crime." Eleven Del. C. § 233 provides:
(a) "Crime" or "offense" means an act or omission forbidden by a statute
of this State and punishable upon conviction by:
(1) Imprisonment; or
(2) Fine; or
(3) Removal from office; or
(4) Disqualification to hold any office of trust, honor or profit under the State: or
(5) Other penal discipline.
* * *
(c) An offense is either a felony, a misdemeanor or a violation. Any
offense not specifically designated by law to be a felony or a violation
is a misdemeanor.
However, "violations" are not generally considered to be as serious as misdemeanors or felonies. For example, Black's Law Dictionary states:
"Crime" and "misdemeanor," properly speaking, are synonymous terms;
. . . In general, violation of an ordinance is not a crime. Black's
Law Dictionary, 6th Ed., p. 370.
Regardless of whether a violation may be considered a crime under Delaware law, we conclude that a first or second DUI offense is a misdemeanor. As such, it is clearly a crime for which a pardon may be sought.
We reach this conclusion from a review of Delaware law. Under the provisions
of 11 Del. C. § 233, as noted above, "no offense is a violation
unless expressly declared to be a violation in this criminal code or in
the statute defining the offense."
The Honorable Edward J. Freel
Page Three
8 June 1999
The Motor Vehicle Code, which contains the DUI statute, provides: "Unless otherwise declared in this Chapter with respect to particular offenses, it is a misdemeanor for a person to do any act forbidden or fail to perform any act required in this Chapter." 21 Del. C. § 4102. Therefore, an offense of driving under the influence is a misdemeanor unless specifically declared to be a violation.
The driving under the influence statute, 21 Del. C. § 4177 et seq., does not specifically define a first or second DUI offense as a violation. The statute does provide that a third DUI offense within five (5) years of the first two offenses, or a fourth DUI offense in a lifetime, is to be considered a felony. Since 21 Del. C. § 4102 provides that any offense is a misdemeanor unless specifically declared otherwise, a first or second DUI offense is a misdemeanor.
This conclusion is supported by the sentences provided typically for violations and for DUI offenses. Under 11 Del. C. § 4207, calling for sentences for violations, the statute provides that the Court may impose a fine up to $345.00 for the first offense of any violation, up to $690.00 for the second offense of that same violation and up to $1,150.00 for the third offense.
Twenty-one Del. C. § 4177(d) governs the punishment for driving
under the influence offenses. A first offense is punishable by a fine between
$230.00 and $1,150.00, and/or imprisonment between sixty (60) days and
six (6) months, and mandatory attendance at classes. A second offense is
punishable by a fine between $575.00 and $2,300.00, and imprisonment for
between sixty (60) days and eighteen (18) months. Therefore, the punishment
provided for a
The Honorable Edward J. Freel
Page Four
8 June 1999
first and second DUI offense is greater than the punishment mandated for a violation in 11 Del. C. § 4207.
Therefore, we conclude that a first or a second DUI offense is a misdemeanor and clearly may be the subject of a pardon under appropriate circumstances.
Another issue to consider is the potential effect of a pardon of a DUI conviction if the offender subsequently commits additional DUI offenses. Under 21 Del. C. § 4177, as noted above, a third DUI conviction within five (5) years or a fourth DUI conviction in a person's lifetime, is a felony. The question thus arises whether a pardon of a previous DUI conviction would mean that the Court could not consider that offense in a subsequent prosecution for driving under the influence. In State v. Robinson, Del.Supr., 251 A.2d 552 (1969), the Delaware Supreme Court ruled that it is the "generally prevailing rule that the pardon of a conviction does not preclude the conviction from being considered as a prior offense under a statute increasing the punishment for a subsequent offense." The Delaware Supreme Court has also noted in State v. Skinner, Del.Supr., 632 A.2d 82 (1993) that a pardon involves forgiveness and not forgetfulness and does not wipe the slate clean for an offender. The fact of a pardon does not close the judicial eyes to the fact that at one time an offender had committed an act which constituted the offense. In addition, the United States Supreme Court has held that a pardon does not blot out the existence of guilt because there is a "confession of guilt implied in the acceptance of a pardon." Burdick v. U. S., 236 U.S. 79 (1915).
The Honorable Edward J. Freel
Page Five
8 June 1999
Thus, an individual's prior DUI conviction may be considered in determining a sentence for a subsequent offense even if the person has received a pardon for the earlier offense. This is in accord with a recent decision of the South Carolina Court of Appeals, which held that a pardoned conviction for driving under the influence can be considered as a prior offense under a statute which enhances punishment for a subsequent conviction. State v. Baucom, 199 WL72440 (1999).
If you have any further questions concerning this matter, please feel free to contact this office.
Very truly yours,
Robert W. Willard
Deputy Attorney General
Approved:
Michael J. Rich
State Solicitor
cc: Honorable M. Jane Brady
Attorney General
Philip Johnson
Opinion Coordinator
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