Delaware Misdemeanor Crimes by Class and Sentences

Delaware uses sentencing guidelines for misdemeanor sentencing. Learn how the guidelines work, what factors come into play, and when enhanced penalties can apply.

By , Attorney

Like other states, Delaware distinguishes misdemeanors from felonies by the possible punishment that can be imposed. A misdemeanor is any crime that can be punished by incarceration of up to one year, whereas felonies are punishable by more than one year and up to life in prison.

This article discusses how misdemeanor sentencing works in Delaware.

Misdemeanor Penalties in Delaware

Delaware divides misdemeanor crimes into two primary categories: Class A and B misdemeanors. Any crime that doesn't specify an offense level is considered an unclassified misdemeanor. Each misdemeanor class has a maximum sentence of incarceration and fine, described below.

Class A misdemeanor. A class A misdemeanor is the most serious type of misdemeanor in Delaware, punishable by up to one year in jail and a $2,300 fine. Examples include third-degree assault, violation of domestic violence protective order, unauthorized use of a vehicle (joyriding), criminal trespass of a dwelling, theft under $1,500, and offensive touching.

Class B misdemeanor. Class B misdemeanors carry a sentence of incarceration up to six months and a fine up to $1,150. Examples include prostitution, possession of drug paraphernalia, ticket scalping, and lewdness.

Unclassified misdemeanors. An unclassified misdemeanor may be punished by up to 30 days' jail time and a $575 fine or by the penalty specified in law. Examples include disorderly conduct, public intoxication, possession of marijuana (quantity other than personal use), and underage gambling.

How Misdemeanor Sentencing Works in Delaware

Delaware uses a system of sentencing guidelines for misdemeanors. Sentencing guidelines use several factors to determine a presumptive sentence, which provides both a recommended sentence length and supervision level that a judge will impose in most circumstances. The presumptive sentences cannot exceed the maximums set in law (described above).

Presumptive Guidelines' Sentence

The guidelines use the following factors to determine a presumptive sentence for a misdemeanor offense:

  • the offense level (class A, B, or unclassified) and maximum penalty
  • the offense type
  • the defendant's past convictions, and
  • any aggravating or mitigating factors.

For class A misdemeanors only, the guidelines provide presumptive sentences for five different categories based on offense type: Violent (MA1), Escape (MA2), Property (MA3), Order and Decency (MA4), and Drug (MA5) misdemeanors.

Supervision Levels Under the Guidelines

Delaware has five supervision levels. Level 5 refers to a recommended sentence of incarceration, and Levels 1 to 4 involve increasing levels of non-prison supervision (probation). Here are descriptions of the different levels.

  • Level 1: unsupervised or administrative supervision
  • Level 2: standard probation of up to 50 hours a month
  • Level 3: intensive probation of up to 56 hours a week
  • Level 4: quasi-incarceration or partial confinement, such as house arrest, work release, or residential treatment
  • Level 5: incarceration to a correctional institution or facility

In most states, a defendant convicted of a misdemeanor would serve any incarceration portion of the sentence in a local jail, and defendants convicted of felonies serve their sentences in state prisons. Delaware, however, has a unified corrections system that serves all classifications of offenses and all stages of the criminal justice process, from pretrial detainees to post-prison supervision. While you'll commonly hear the term jail, these facilities are referred to as correctional institutions and centers in Delaware.

Sentencing of Misdemeanor Convictions

When a defendant is convicted, the judge will order a sentence term and supervision level (probation or prison) based on the guidelines.

For instance, when sentencing a class A violent misdemeanor (MA1), the guidelines set the following recommended sentences:

  • First offense: up to 12 months on Level 2 supervision (standard probation); reduced to nine months for accepting responsibility for the offense
  • Second offense in two years: up to six months on Level 3 supervision (intensive probation) and six months on Level 2 supervision (standard probation)
  • Third offense in five years: up to three months' incarceration and up to nine months on Level 2 supervision (standard probation)

The presumptive sentencing for other categories of class A misdemeanors follows a similar pattern of increasing levels of supervision for repeat offenses. Class B and unclassified misdemeanors recommended fine-only penalties for first and second offenses and probation sentences for third offenses.

To find presumptive sentences for other misdemeanor classes, check out the most recent benchbook on the Delaware Sentencing Accountability Commission's website.

Misdemeanor Probation

For most misdemeanor convictions, a defendant will serve all or part of the time on probation. Probation suspends the incarceration portion of the sentence and allows the defendant to serve that time in the community under varying levels of supervision.

Depending on the supervision level, the judge may impose certain conditions of probation, such as remaining law-abiding, completing community service, paying victim restitution, attending substance abuse treatment, or being under house arrest. The defendant must abide by these terms to successfully complete the sentence. A violation of any of these conditions can result in the judge revoking the suspended sentence and sending the defendant to jail.

Exceptional Sentences for Misdemeanors

In certain cases, the law authorizes the imposition of an "exceptional sentence" that departs up or down from the recommended length or imposes a different disposition (such as incarceration rather than probation). When imposing an exceptional sentence, the judge must provide the rationale for doing so, such as any of the factors listed below.

Aggravating or mitigating factors. Aggravating factors, such as a crime involving a vulnerable victim or lack of remorse, may justify imposing a harsher sentence. On the flip side, a judge might impose a less harsh sentence if mitigating factors were involved, such as the defendant was induced by others to commit the crime.

Domestic violence involved. A judge can also impose a harsher sentence in domestic violence offenses where, for example, a child witnessed the violence or repeated incidences were involved before charges were filed. In such cases, the guidelines provide an aggravated presumptive sentence that includes incarceration (rather than probation). As an example, third-degree domestic assault carries a presumptive sentence of incarceration for a month for a first offense, two months for a second offense in two years, and three months for a third offense in five years.

Statutory minimum sentence. When the law fixes a minimum sentence for the offense, judges must impose that mandatory minimum. For instance, a third or subsequent violation of a domestic violence protective order carries a 15-day minimum jail sentence.

When Misdemeanors Become Felonies

The law allows prosecutors to charge certain misdemeanor violations as felonies. Enhanced felony charges are authorized for several misdemeanor offenses involving a repeat offender, injuries, a weapon, or a vulnerable victim. Some examples include:

  • Unlawfully dealing with a firearm is an unclassified misdemeanor but bumps up to a class G felony if the defendant transfers the firearm to a child.
  • Threatening someone with a crime likely to result in death or serious injury is a class A misdemeanor, but when the victim is 62 or older, the offense increases to a class G felony.
  • Making false reports of an incident requiring an emergency response falls under a class A misdemeanor, but a second such offense is a class G felony.
  • Criminal contempt of a domestic violence protective order carries a class A misdemeanor penalty but becomes a class F felony if a victim suffers injuries or the defendant threatened or used a deadly weapon.

Criminal Statute of Limitations in Delaware

Like most states, Delaware sets time limits for prosecutors to file charges in a criminal case. If a prosecutor charges a case after the time limit has run, a defendant can ask the judge to dismiss the case. The time limit for misdemeanors is generally two or three years after the offense was committed. For more information, see Criminal Statutes of Limitations.

Obtaining Legal Assistance

Any criminal conviction can have serious and lasting results that can make life unpleasant for years to come. If you are charged with any crime, even a seemingly trivial misdemeanor, consult a local criminal defense attorney. An experienced Delaware attorney can tell you how your case is likely to fare in court and how to best protect your rights. You may want to ask if and how you can get a conviction expunged.

(Del. Code tit. 11, §§ 205, 1245, 1271A, 1445, 4202, 4204, 4206, 4332, 4333, 4334 (2021).)

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