The decision to fight or plead guilty could affect the rest of your life.
The Lyons Law defense team may enable you to enjoy your life without losing your driver's license or your car. We may be able to help you avoid going to prison, having a permanent criminal record, or paying substantial fines or huge increased insurance premiums. Our goal is to also help you avoid being placed on probation, doing long hours of community service, or carrying the social baggage that could adversely affect your job, personal life and relationships.
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The Law and the Penalties
Delaware recently greatly increased the license loss penalties for a violation of its law prohibiting driving under the influence. For example, a first offender can lose his license for up to two years, a second offender up to two and one-half years, a third offender up to three years and all fourth offenders will lose their license for five years. In addition, of course, second and greater offenders face the prospect of mandatory prison time. Given these greatly increased penalties, it is important that you understand the law and your rights if you are charged with a DUI.
Under Delaware law it is illegal (as it is in all States) to drive a vehicle under the influence of alcohol or any drug, even if prescribed. There are two ways police attempt to prove a driver was under the influence. Usually, if the driver has taken a chemical test which calculates the amount of alcohol in the blood sample, the police rely on a provision of Delaware law that says that any test result .08 or above, so long as the test was taken within four hours after driving, is an automatic violation of the law. A second way the police sometimes, but far less often, attempt to prove DUI is to rely on all the evidence in the case, arguing that it would lead a reasonable person to conclude that the driver was under the influence. These "no test" cases are easier to defend.
For a first offense, a driver can be fined up to $1,150.00 or imprisoned up to six months. In addition, following a conviction, a driver will be required to complete an drinking/driving course at his/her own expense. For a first offense, the fine imposed is usually the minimum fine ($230.00) and a sentence of imprisonment (normally 60 days) is suspended so long as the driver completes the course of instruction Ordered.
For a second offense within five years of a first offense, however, the conviction means prison time at Gander Hill Prison. Normally, second offenders are sentenced to 60 days although they can be sentenced to as much as 18 months in prison. The 60 days usually amounts to 6-7 days in custody with the balance suspended. Second offense fines may be as low as $575.00 or as much as $2,300.00. The prison sentence required for a second offense cannot be suspended other than as set forth above. In addition, a drinking/driving course will be required.
For a third offense, anytime within five years of the first offense, the drinking driver, if convicted, is guilty of a felony under Delaware law and subject to fines between $1,000.00 and $3,000.00 and imprisonment from one year to two years. The minimum one year sentence of imprisonment cannot be suspended until after the Defendant has served at least the first three months. This three months is not subject to any early release, furlough or reduction of any kind. Of course, the course of instruction will also be required.
For a fourth offense DUI occurring any time after three prior offenses, the charge becomes a more serious felony punishable by $2,000.00 to $6,000.00 fine and two to five years imprisonment. At least six months of any sentence of imprisonment must be served and is not subject to suspension of any kind. Again, the course of instruction must also be taken.
To summarize, for a second, third or fourth or greater offense, in Delaware, the drinking driver, if convicted, will always go to prison.
In addition to giving you a ticket charging you with an offense under the above referenced guidelines (note that offenses from other States are also counted so long as they are violations of a Statute similar to Delaware's Statutes), the officer, at the time of arrest, will take your Delaware license and issue you a slip of paper serving as a temporary license. Although the form the police use is somewhat confusing, this temporary license is good for only 15 days and unless you request the Department of Motor Vehicle to schedule a hearing regarding whether or not your license should be taken, the temporary license will expire in 15 days. At that point, you will have no license to drive a vehicle.
If you allow the temporary license to expire without requesting a hearing or if you request a hearing and subsequently lose the administrative hearing at the Department of Motor Vehicle, your license will be revoked as follows:
- If you have taken the chemical test demanded by the police officer at the time of the arrest, your revocation will be a period of three months for a first offense, one year for a second offense and 18 months for more than two offenses.
- If you refused the chemical test at the time of your arrest, the revocation will be for a period of one year for a first offense, 18 months for a second offense and 24 months for a third or greater offense.
In addition to the license revocation set forth above, you will also be required to take a drinking/driving educational course and this course must be completed before your license can be restored. In terms of early reinstatement of driving privileges after revocation by the Department of Motor Vehicle, you will be required to serve at least a six months period of license suspension.
First Offender's Program
The State of Delaware permits an individual charged with a first offense DUI to enter the equivalent of a guilty plea to the charge by asking to be treated as a first offender. In this situation, the driver is referred to the same educational program we discussed above and the driver's license is revoked. It can, however, be reinstated in three months (as opposed to the normal six months) upon completion of the educational course. In addition to not having had a prior DUI within five years of the current offense, to be eligible for the First Offender's Program, the driver:
- Must not have received three or more moving violations within two years prior to the offense;
- Must not have been involved in a personal injury accident at the time of the offense (except that the driver's own injuries shall not disqualify him/her);
- Did not have a blood alcohol reading in excess of .16;
- Was driving with a valid license at the time of the offense; and,
- Was not transporting a child in his/her vehicle while driving under the influence.
The benefit of taking the First Offenders election is that you can get your license back faster (three months) than you would if you were convicted of a DUI offense (at least twelve months), assuming you complete the drinking/driving course appropriately. The disadvantage is that you will lose your license for at least three months, and in the future, if you receive another DUI offense, the previous First Offenders election will count as a first offense.