Submitted: December 20, 2013
Kevin S. Hudson, Esquire, Deputy Attorney General Department of Justice Attorney for the State
James M. Stiller, Jr., Esquire Schwartz & Schwartz Attorney for Defendant
Richard R. Cooch, R.J.
Defendant Robert Williams ("Defendant") requests that the required transdermal alcohol ("TAD") monitoring portion of his Third Offense Driving Under the Influence sentence be declared unconstitutional or, alternatively, that he be discharged from probation. Because the TAD monitoring is mandated by statute and not a violation of Defendant's constitutional equal protection rights or right to travel, his Amended Motion for Review and Modification of Sentence is DENIED.
Defendant, a Pennsylvania resident, pled guilty to his third DUI on September 5, 2013. He was sentenced to two years level 5 suspended after 99 days for supervision at level 2 or 3 (to be decided at the discretion of Probation and Parole). Sentencing for a third DUI under 21 Del. C. § 4177(d) mandates at least one year at level 5 during which the first three months may not be suspended.Any suspended portion of the sentence after the first three months must include the following:
a. A drug and alcohol abstinence program requiring that the offender maintain a period of not less than 90 consecutive days of sobriety as measured by a transdermal continuous alcohol monitoring device. In addition to such device, the offender shall participate in periodic, random breath or urine analysis during the entire period of supervision.
b. An intensive inpatient or outpatient drug and alcohol treatment program for a period of not less than 3 months. Such treatment and counseling may be completed while an offender is serving a Level V or Level IV sentence.
c. Any other terms or provisions deemed appropriate by the sentencing court or the Department of Correction.
There is nothing in the statute that allows the Department of Correction or the Court to waive TAD monitoring.
Probation for out-of-state offenders is governed by the Interstate Compact for Adult Offender Supervision. The Compact states in pertinent part that "[a] receiving state that is unable to enforce a special condition imposed in the sending state shall notify the sending state of its inability to enforce a special condition at the time of request for transfer of supervision is made."
Defendant's sentencing order states that his "[p]robation may be transferred to Pennsylvania if accepted by that State and in agreement with the probation officer." Delaware Probation and Parole does not oppose ...