ON REHEARING EN BANC
WALSH, Justice:Following issuance of the principal opinion in this case, the Court granted the State’s motion for rehearing en banc. Our decision to grant rehearing was prompted by the State’s concern that our conclusion that Krewson had not made a knowing and intelligent election to enter the First Offender’s Program is premised on a holding that a defendant who pleads guilty to an initial offense, or who enters the First Offender’s Program, is entitled to be informed of any enhanced penalty which results from a subsequent offense. We believe the State reads too much into our decision but to the extent such an inference is arguable a clarification is desirable.
Our holding that Krewson did not make a knowing election to enter the First Offender’s Program is based on the uncontra-dicted evidence that he had never appeared before a judicial officer or participated in any formal judicial proceeding. Instead, he was processed and referred to a driving course without an awareness that he had been subjected to a judicial proceeding. It is our understanding that such a procedure is no longer used and that since 1983 each court has required the election to First Offender’s Program to take place only at arraignment, as 21 Del.C. § 4177B(a) provides. A defendant is also now required to execute a written form which, inter alia, advises him that certain penal sanctions will result upon his failure to successfully complete the First Offender’s Program or if he is convicted of driving under the influence within five years. The form in question conveys the clear impression that the diversion program has the equivalence of a “conviction” for purposes of future jeopardy.
Although diversion to a First Offender’s Program is not a conviction for immediate sentencing purpose it has that effect for second offender status. While Krewson was charged with constructive knowledge of that result, in the sense that he could not be in ignorance of the statute, the circumstances of his diversion did not provide him with the knowledge essential to make that election. In the absence of an arraignment, and the participation of a judicial officer, Krewson was not chargeable with notice that he was being administratively diverted into a program which subjected him to a “conviction” equivalent. A defendant is not charged with knowledge of a penal statute if he is misled concerning whether the statute is not being applied.
Where a defendant has been formally charged and arraigned and is under no illusion that he has entirely avoided the judicial process with none of its statutorily imposed sanctions, there is clearly no requirement that he be informed of every contingency, including subsequent offenses, which might result in penalty enhancement. Nothing in our principal opin*844ion, which was directed to an aberrational occurrence under a discarded procedure, suggests the contrary.