MOORE, Justice.
The defendant, Martha P. Tarr, appeals her conviction in the Superior Court of first degree vehicular homicide. She contends that the State was precluded by the double
jeopardy clauses of the United States and Delaware Constitutions
from bringing the charge against her because of her earlier election to participate in a first offender’s program for those charged with drunken driving.
We conclude that the defendant is not entitled to the protection she seeks. Jeopardy for vehicular homicide did not attach when she voluntarily chose to enroll in the first offender’s program, a purely administrative project. Accordingly, we affirm.
I.
On September 7, 1981, after leaving a bar near Seaford, Delaware, the defendant Tarr drove her car into a tree adjacent to Route 13a. Both she and her passenger were injured, and the latter immediately lapsed into a coma. At the time of the accident, Tarr’s blood alcohol content, by weight, was found to be .32%.
On May 4, 1982, while her passenger remained comatose, the defendant was charged with operating a motor vehicle under the influence of alcohol pursuant to 21
Del.C.
§ 4177.
At her arraignment on June 2, 1982, the defendant elected to participate in the first offender’s course of instruction pursuant to 21
Del.C.
§ 4177B (1979 Repl.)
She later successfully completed the program.
On December 8, 1982, the passenger, without regaining consciousness, died from
the injuries suffered in the accident. The defendant was subsequently indicted for vehicular homicide in the first degree. 11
Del. C.
§ 630A (1982 Supp.).
After the arraignment Tarr moved to dismiss the indictment on double jeopardy grounds, arguing that her prior drunk-driving charge and first offender’s election precluded the subsequent homicide prosecution. The motion to dismiss was denied and the defendant was subsequently found guilty after a bench trial. She was sentenced to four years imprisonment, suspended for four years during which period she had to contribute 150 hours of community service work and undergo alcoholism counseling.
II.
Both the United States and Delaware Constitutions provide that no person shall be twice put in jeopardy of life or limb for the same offense. U.S. Const., amend. V., Del. Const., art. I, § 8. See n. 1. The United States Supreme Court has recognized that the effect of the double jeopardy clause is to afford to criminal defendants several basic protections. Specifically, the Court has held that “[the double jeopardy clause] protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense”.
Ohio v. Johnson,
— U.S.-, 104 S.Ct. 2536, 2540, 81 L.Ed.2d 425 (1984), quoting
Brown v. Ohio,
432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977).
See also, Illinois v. Vitale,
447 U.S. 410, 415, 100 S.Ct. 2260, 2264, 65 L.Ed.2d 228 (1980).
At the heart of the double jeopardy clause is a concern for protecting an individual from harassment by the government through its multiple attempts to bring the “same” charge against a defendant for conduct arising out of the same factual situation.
State v. Heitter,
Del.Supr., 203 A.2d 69 (1964).
A crucial determination that must be made, when double jeopardy is an issue, is whether jeopardy attached in the first proceeding. The question of when jeopardy attaches is relatively settled in most instances. In a nonjury trial jeopardy attaches when “the first witness is sworn”.
Willhauck v. Flanagan,
448 U.S. 1323, 101 S.Ct. 10, 65 L.Ed.2d 1147 (1980). In a jury trial it occurs when the jury is impaneled and sworn.
Crist v. Bretz,
437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978). Finally, in those cases where the defendant is convicted, based on a plea of guilty, double jeopardy will be found to preclude a subsequent conviction for the same offense.
Kring v. Missouri,
107 U.S. 221, 2 S.Ct. 443, 27 L.Ed. 506 (1883).
A defendant’s election to participate in a first offender’s program to avoid prosecution for the charge of driving under the influence, pursuant to 21
Del.C.
§ 4177, does not fit within any of these typical situations where jeopardy usually attaches. However, given the nature of this project, we find it conceptually incompatible with the usual indicia upon which a viable claim of double jeopardy rests.
We previously recognized the administrative nature of the first offender’s program
in
Rogers v. State,
Del.Supr., 457 A.2d 727 (1983). There, we noted that “the obvious legislative purpose of that program was to permit first offenders to choose between adjudication of the charge through the judicial system or administrative processing without adjudication of guilt if successful in the rehabilitation program”.
Id.
at 733, n. 11, quoting
State v. Marjorie H. Bakke,
Del.Super., Cr.A. S79-04-0051A (June 20, 1979) (Walsh, J.).
Thus the administrative first offender’s program is similar to a civil sanction which does not preclude a subsequent criminal prosecution. It is well established that double jeopardy “only prohibits twice punishing a person
criminally
for the same offense, [and that] the State may impose both a criminal and a civil penalty for the same act”.
State v. Kamalski,
Del.Super., 429 A.2d 1315, 1318 (1981) (emphasis in original).
See Helvering v. Mitchell,
303 U.S. 391, 58 S.Ct. 630, 82 L.Ed. 917 (1938).
Ms. Tarr contends that the first offender’s program has many attributes of a criminal conviction. She points to the fact that the program placed restrictions on her liberty, since she had to enroll in a course of instruction and adhere to rules and regulations promulgated by the Secretary of Public Safety. She notes that she was required to pay a fee for the program, which could not be higher than the minimum fine that may be imposed for a drunken-driving conviction. 21
Del.C.
§ 4177D (1978).
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MOORE, Justice.
The defendant, Martha P. Tarr, appeals her conviction in the Superior Court of first degree vehicular homicide. She contends that the State was precluded by the double
jeopardy clauses of the United States and Delaware Constitutions
from bringing the charge against her because of her earlier election to participate in a first offender’s program for those charged with drunken driving.
We conclude that the defendant is not entitled to the protection she seeks. Jeopardy for vehicular homicide did not attach when she voluntarily chose to enroll in the first offender’s program, a purely administrative project. Accordingly, we affirm.
I.
On September 7, 1981, after leaving a bar near Seaford, Delaware, the defendant Tarr drove her car into a tree adjacent to Route 13a. Both she and her passenger were injured, and the latter immediately lapsed into a coma. At the time of the accident, Tarr’s blood alcohol content, by weight, was found to be .32%.
On May 4, 1982, while her passenger remained comatose, the defendant was charged with operating a motor vehicle under the influence of alcohol pursuant to 21
Del.C.
§ 4177.
At her arraignment on June 2, 1982, the defendant elected to participate in the first offender’s course of instruction pursuant to 21
Del.C.
§ 4177B (1979 Repl.)
She later successfully completed the program.
On December 8, 1982, the passenger, without regaining consciousness, died from
the injuries suffered in the accident. The defendant was subsequently indicted for vehicular homicide in the first degree. 11
Del. C.
§ 630A (1982 Supp.).
After the arraignment Tarr moved to dismiss the indictment on double jeopardy grounds, arguing that her prior drunk-driving charge and first offender’s election precluded the subsequent homicide prosecution. The motion to dismiss was denied and the defendant was subsequently found guilty after a bench trial. She was sentenced to four years imprisonment, suspended for four years during which period she had to contribute 150 hours of community service work and undergo alcoholism counseling.
II.
Both the United States and Delaware Constitutions provide that no person shall be twice put in jeopardy of life or limb for the same offense. U.S. Const., amend. V., Del. Const., art. I, § 8. See n. 1. The United States Supreme Court has recognized that the effect of the double jeopardy clause is to afford to criminal defendants several basic protections. Specifically, the Court has held that “[the double jeopardy clause] protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense”.
Ohio v. Johnson,
— U.S.-, 104 S.Ct. 2536, 2540, 81 L.Ed.2d 425 (1984), quoting
Brown v. Ohio,
432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977).
See also, Illinois v. Vitale,
447 U.S. 410, 415, 100 S.Ct. 2260, 2264, 65 L.Ed.2d 228 (1980).
At the heart of the double jeopardy clause is a concern for protecting an individual from harassment by the government through its multiple attempts to bring the “same” charge against a defendant for conduct arising out of the same factual situation.
State v. Heitter,
Del.Supr., 203 A.2d 69 (1964).
A crucial determination that must be made, when double jeopardy is an issue, is whether jeopardy attached in the first proceeding. The question of when jeopardy attaches is relatively settled in most instances. In a nonjury trial jeopardy attaches when “the first witness is sworn”.
Willhauck v. Flanagan,
448 U.S. 1323, 101 S.Ct. 10, 65 L.Ed.2d 1147 (1980). In a jury trial it occurs when the jury is impaneled and sworn.
Crist v. Bretz,
437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978). Finally, in those cases where the defendant is convicted, based on a plea of guilty, double jeopardy will be found to preclude a subsequent conviction for the same offense.
Kring v. Missouri,
107 U.S. 221, 2 S.Ct. 443, 27 L.Ed. 506 (1883).
A defendant’s election to participate in a first offender’s program to avoid prosecution for the charge of driving under the influence, pursuant to 21
Del.C.
§ 4177, does not fit within any of these typical situations where jeopardy usually attaches. However, given the nature of this project, we find it conceptually incompatible with the usual indicia upon which a viable claim of double jeopardy rests.
We previously recognized the administrative nature of the first offender’s program
in
Rogers v. State,
Del.Supr., 457 A.2d 727 (1983). There, we noted that “the obvious legislative purpose of that program was to permit first offenders to choose between adjudication of the charge through the judicial system or administrative processing without adjudication of guilt if successful in the rehabilitation program”.
Id.
at 733, n. 11, quoting
State v. Marjorie H. Bakke,
Del.Super., Cr.A. S79-04-0051A (June 20, 1979) (Walsh, J.).
Thus the administrative first offender’s program is similar to a civil sanction which does not preclude a subsequent criminal prosecution. It is well established that double jeopardy “only prohibits twice punishing a person
criminally
for the same offense, [and that] the State may impose both a criminal and a civil penalty for the same act”.
State v. Kamalski,
Del.Super., 429 A.2d 1315, 1318 (1981) (emphasis in original).
See Helvering v. Mitchell,
303 U.S. 391, 58 S.Ct. 630, 82 L.Ed. 917 (1938).
Ms. Tarr contends that the first offender’s program has many attributes of a criminal conviction. She points to the fact that the program placed restrictions on her liberty, since she had to enroll in a course of instruction and adhere to rules and regulations promulgated by the Secretary of Public Safety. She notes that she was required to pay a fee for the program, which could not be higher than the minimum fine that may be imposed for a drunken-driving conviction. 21
Del.C.
§ 4177D (1978). Finally, the defendant observes that enrollment in the first offender’s program results in the revocation of the participant’s driver’s license for one year, equal to the same penalty imposed after a conviction.
In some ways these characteristics resemble probation or criminal punishment, but they do not flow from an exercise by the State of its governmental powers of prosecution. Instead, the defendant has voluntarily chosen an alternative course, the goals of which are to address the many facets of a serious problem without recourse to criminal sanctions. The non-criminal aspect of the first offender’s program also is apparent from the fact that it is administered by the Secretary of Public Safety rather than the Attorney General, the State’s chief law enforcement officer. 21
Del. C.
§ 4177B.
Moreover, the entire thrust of the program is a concern for rehabilitation rather than punishment. This is illustrated by the fact that the participant avoids the criminal justice system, contingent on the completion of this rehabilitative course. The distinction between punative and remedial goals of a program was recognized by the Superior Court in
State v. Kamalski,
Del. Super., 429 A.2d 1315 (1981). Holding that the Habitual Offender Act
and its enforcement provisions did not violate the constitutional prohibitions against double jeopardy, the court reasoned that “[t]he primary purpose of ... [the Habitual Offender Act] is to foster public safety on the highways of this State, and not to punish persons who violate traffic regulations”.
Id.
at 1318.
See also Villa v. State,
Del.Supr., 456 A.2d 1229, 1231-1232 (1983) (construing the motor vehicle Habitual Offender Act as civil in nature, rather than criminal, and providing that its sanctions may be imposed concurrent with or subsequent to criminal penalties).
Finally, the defendant observes that despite her successful completion of the first offender program, she will be treated as a second offender subject to stricter sanctions if she is convicted of driving under
the influence within five years of her first arrest. This however does not convert completion of the course into a conviction. If anything, it highlights the distinction between its administrative character and a criminal proceeding. No judgment of conviction resulted from the defendant’s participation in this program. Indeed, there could be none, since only a court may enter such an order. Moreover, we are satisfied that a rational statutory criterion such as this may enhance a criminal sanction. In our view it is a valid consideration in the imposition of sentence once the objectives of a prior administrative proceeding have been defeated by a defendant’s later, but similar, misconduct.
Based on the foregoing, we conclude that Ms. Tarr’s voluntary participation in this remedial course raises no viable double jeopardy bar to her prosecution, conviction and sentence for this most serious offense of taking another person’s life.
The judgment of conviction is AFFIRMED.