State v. Zickgraf
In State v. Zickgraf, 2005 WL 4858668 (Del. Super. 2005), aff'd, 897 A.2d 768 (Del. 2006), both in the Superior Court and before the Supreme Court, the Attorney General briefed and argued the legal position that there is very limited discretion granted to the Attorney General in charging and prosecuting fourth offense DUI offenders as either first or second offense DUI offenders.
In Zickgraf, the Attorney General originally filed a DUI charge in JP Court. Zickgraf elected to have the case removed to the Court of Common Pleas. While the case was pending in the Court of Common Pleas, the Attorney General noticed the prior convictions, entered a nolle prosequi on the charges, and subsequently brought a felony indictment in Superior Court. Zickgraf then moved to dismiss the indictment because the State had previously filed the charges in the Court of Common Pleas.
The Superior Court denied the motion to dismiss and specifically stated that the Court of Common Pleas did not have jurisdiction over the offense because defendant's alleged crime, if proven, fell under section 4177 (d)(3).
The Superior Court stated: "it is clear . . .that the Attorney General's Office erred in filing this indictment in a court that lacked jurisdiction."
The Supreme Court, upon consideration of the briefs of the parties, affirmed the Superior Court's judgment.
In Zickgraf, the State asserted that the "clear language of the DUI statute" requires an interpretation that the Court of Common Pleas can not try and sentence a felony DUI offender.
The State contended that "there is very limited discretion granted to the Attorney General and the courts dealing with felony DUI offenders - the classification of the crime as a felony and accompanying punishment is set by the legislature."
The State also identified, as this Court did above, that the legislature specifically inserted a provision granting discretion to the Attorney General to reduce a section 4177(d)(4) offense to a (d)(3) offense for sentencing purposes. The State concluded its argument in Zickgraf by proffering that a third or subsequent offense DUI must be tried in the Superior Court and that "no other court has jurisdiction."