The Law and You

Delaware DUI Law

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:

(a) 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.

(b) 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:

(a) Must not have received three or more moving violations within two years prior to the offense;

(b) 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);

(c) Did not have a blood alcohol reading in excess of .16;

(d) Was driving with a valid license at the time of the offense; and,

(e) 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.

THE "NORMAL" DUI STOP

DUI cases come in all shapes and sizes. However, the normal profile of a DUI stop is as follows. A police officer's attention is drawn to a vehicle because of an alleged traffic violation such as speeding, illegal lane change, failing to obey a traffic control device or, failing to remain totally within a marked lane of travel. The officer stops the vehicle for investigation of the traffic offense. When the officer approaches the driver's side of the car, he smells alcohol. Often times he will observe the driver to have a flushed face with bloodshot eyes and slurred speech. He will then ask the driver if he has been drinking. He may ask for the quantity consumed and when alcohol was last consumed. He will likely ask the driver to produce license, registration and insurance card. If the driver has any problem locating these cards or handling them, the officer makes note of that as well. What you must understand is at this point in the process, the officer is "building" his case against the driver to later justify demanding the driver take a chemical test to determine his blood alcohol content.

If the officer believes there is a likelihood that the driver is impaired by alcohol, he will ask the driver to step from the vehicle, noting any difficulty in getting out of the car. He will then ask the driver to step to a safe position off the roadway where he can perform certain field tests requested by the officer. These field tests often involve the following:

(a) Saying the alphabet from one particular letter to another;

(b) Counting backwards from one particular number to another;

(c) Standing with your heels together, arms outstretched, head tilted back and eyes closed and then touching the tip of the nose with one or more of the fingers on each hand of an outstretched hand;

(d) Standing on one leg and extending the other leg in front for a period of 30 seconds while counting off the time; and finally,

(e) Walking heel and toe on a line 9-10 steps out and back without stepping off the line or failing to maintain heel and toe.

In addition, the officer may request that the driver blow into a portable breath tester which he carries with him in his car. He may also pass a moving object back and forth in front of a driver's eyes to see how smoothly the eyes follow the moving object.

What you must understand is that during this period of field test performance on the roadway, the officer is building his case against the driver to support a DUI charge and most importantly to support a demand that the driver to undergo a chemical test to accurately determine his blood-alcohol level. THERE IS NO REQUIREMENT UNDER THE LAWS OF THE STATE OF DELAWARE THAT A DRIVER SUBMIT TO ANY OF THESE FIELD TESTS OR ANSWER ANY OF THE OFFICER'S QUESTIONS. THE ONLY THING THAT I RECOMMEND A DRIVER DO WHEN STOPPED BY A POLICE OFFICER, IF THE DRIVER IS CONCERNED ABOUT WHETHER OR NOT HE IS UNDER THE INFLUENCE, IS POLITELY PROVIDE THE OFFICER WITH LICENSE, REGISTRATION AND INSURANCE INFORMATION AND DECLINE ALL OTHER TESTS.

At the conclusion of the field tests, if the officer feels he has a reasonable basis to believe that the driver is under the influence of alcohol and, therefore, in violation of Delaware's DUI law, he will arrest the driver and take him to Police Headquarters for administration of a Breathalyzer test. If there is another driver in the car who is not impaired by alcohol, the police officer may, they he is not required, to permit that driver to continue on in the vehicle. Most of the time, however, the police simply make arrangements to have the vehicle towed to a local tow yard.

Back at Police Headquarters, assuming a breath test is to be administered, the police officer is required to observe the driver, who is now in custody, for at least 20 minutes immediately prior to administering the test. This is to assure that the driver has nothing in his mouth and neither eats nor drinks anything during that 20 minute period. This is required because the manufacturer of the machine has advised the police that a driver who has chewed gum, smoked, eaten or drunk anything in the 20 minutes immediately preceding the test may have a false positive, or an inaccurately high reading, on the breath test.

After the test is administered, unless the driver is markedly intoxicated, the police will usually permit a phone call to an acquaintance so that someone can come and pick the driver up and take him home. Before doing so, however, they will take the driver's Delaware license and will issue to him instead a notice of revocation subject to the 15 day license discussed above. In addition, they will give the driver a ticket for DUI requiring an appearance before Justice of the Peace Court within approximately one week following the stop.

HOW DO WE DEFEND THESE CASES?

Many people ask us if there is any point in defending a case when their reading on the intoxilizer was over .08. The answer is yes unless you want to concede the case to the State, pick up a first offense that can cause troubles down the line, and also undergo, at least, a 90 day license loss.

Recall that the officer must have had a specific reasonable and factual justification for stopping your vehicle in the first place. Thus, the first question to be asked of the officer in any proceeding (either the DUI trial or the Motor Vehicle hearing) is to justify the basis for the stop. Subsequent to that, in the chronology of the driver's contact with the police, the next question that arises is whether or not the police officer had the right to arrest the driver for anything. This requires something known as "probable cause" which is a reasonable factual basis for believing that an individual has committed an offense.

When the officer is conducting field tests of a detained driver suspected of DUI, what he is doing is attempting to develop that factual basis to support a showing of probable cause justifying an arrest. Since a driver is not required to do any of these field tests, and since the officer is only attempting to conduct these tests to your detriment, we recommend that you politely refuse all field tests at the scene, including a request to blow in a PBT, a portable breath tester. If the officer arrests you and takes you in for a Breathalyzer test when he did not have "probable cause" the arrest will be thrown out and the case will be dismissed.

Next, the officer must be able to demonstrate that he was qualified to operate the intoxilizer machine, that the machine was operating properly on the day in question, and that he administered the test properly. If he fails to jump through any one of these hoops, the test will be deemed inadmissible and it is likely the driver will win the proceeding against him.

Many, if not all of the defenses outlined above are equally applicable in a Motor Vehicle hearing conducted once the driver has requested such a hearing.

YOU ARE FIGHTING TWO BATTLES

Recall that the police officer gave you a ticket and a temporary license and that unless you request a Motor Vehicle hearing, that temporary license will expire within 15 days. To keep your license alive you must fight and win both battles -- that represented by the ticket and that represented by the temporary license. Once you have requested a Motor Vehicle hearing, it will likely be scheduled in 30 days or so and take place prior to the time you have to go to trial on the DUI ticket. At the hearing you and your lawyer attend, as well as the police officer. If the police officer does not appear for the hearing, you will win. At the hearing, the police officer will be required to outline his case through a hearing officer (a Motor Vehicle employee -- often times a retired police officer) and in so doing he must justify the vehicle's stop, any decision to arrest you, any decision to administer the Breathalyzer to you and proper administration of the test. Based on all of that evidence the question is whether or not the hearing officer believes you were driving under the influence on the date in question.

If you win the administrative hearing at Motor Vehicle, your Delaware driver's license will be returned to you, however it is still subject to revocation if you are convicted on the DUI ticket. If you lose at Motor Vehicle, your license will, in fact, be revoked as we have outlined above but you still will need to deal with the DUI ticket.

FREQUENTLY ASKED QUESTIONS

1. Should I take the First Offender's Program?

ANSWER: That depends. If it is worth it to you to pick up a DUI and a sure 90 day license loss as opposed to fighting a charge and risking at least a twelve month license loss, then perhaps you should take the First Offender's Program. On the other hand, if you are more interested in not picking up a first offense that can cause you major problems if you are ever charged with DUI again, than you should not take the First Offender's Program.

2. Can I get a conditional license during the period of any license revocation under the DUI laws of the State of Delaware?

ANSWER: Until recently the answer was absolutely not. The answer remains absolutely not except in very limited circumstances involving very low blood alcohol results or the Ignition Interlock Program which is discussed elsewhere in these pages.

3. Can I get probation for a second offense DUI?

ANSWER: Absolutely not. As outlined above, you will receive at least a 60 day sentence suspended after 6-7 days for probation. There are no exceptions and you must spend, at least, 6-7 days in prison if you are convicted.

4. Can I serve my DUI sentence on weekends?

ANSWER: The Statute does not discuss such a procedure. However, some Judges in New Castle County have begun to permit service of sentence on weekends where, to require the sentence to be served consecutively would unduly interfere with a driver's responsibilities as a parent or employment opportunities.

5. What is the First Offender Program?

ANSWER: Under Delaware law, if a driver is otherwise eligible for the First Offender's Program (upon successful completion of which he would get a conditional license back in 90 days), he may apply for admission to the Ignition Interlock Program. Under this program, the driver's automobile is fitted, at his expense, with an ignition interlock device that he must blow into prior to operating a vehicle. The device is constructed so that it will detect if the driver has been drinking and will not permit the car to be started in that situation. Under the program, the driver loses his license for 30 days (if he has not refused a Breathalyzer) and 60 days (if he has refused a Breathalyzer), and then his automobile is fitted with an ignition interlock device at his cost. At that point, the driver is permitted to return to the roadways of the State of Delaware with a Delaware driver's license. He is restricted, however, to only driving the vehicle fitted with the interlock device. The program requires that the driver pay monthly rental charge on the device (approximately $55.00). The driver is required to use the interlock device for a period of between 12 and 14 months. His unrestricted license is returned to him only after completion of at least five months using the interlock device. In short, the Ignition Interlock Program can be summed up as a version of the First Offender's Program by which a driver can receive a conditional license after as little as a 30 day suspension of his license.

6. What is the Mandatory Ignition Interlock Program?

ANSWER: If you have a high blood alcohol reading (greater than 0.15) as a first offender or if you are convicted of a second or subsequent DUI offense, you will be required to have an Ignition Interlock device installed on your car. Following the revocation of your license, before the license is reinstated, you will have to serve a period of time driving only that vehicle and blowing into the device each time you start the car. In short, after conviction, you will spend time not driving and then time driving with an IID before you get an unrestricted license back.

7. What is the legal limit in Delaware?

ANSWER: At present, it is .08% blood alcohol. Note that this is not a permissible amount of blood alcohol. Rather, it is a level at which or beyond which the law says that a driver is automatically guilty of the offense of DUI. It is possible that a driver with a reading below .08 (for example .05, .06 or .07) could also be convicted of driving under the influence. In that case, however, the State would not have to benefit of the automatic .08 rule but rather would have to prove through other avenues that the driver was under the influence. This could be done, although it is very difficult to do, based upon the officer's observations or the drinking driver's admission, e.g., "I had too much to drink".

8. Is it possible to plea bargain DUI charges?

ANSWER: Yes. The State of Delaware has a general policy against plea bargaining DUI charges unless there is a specific reason that the prosecutor feels it will be difficult to secure a conviction. Weaknesses in the State's case as outlined in our chapter on defending DUI's, would often times convince a prosecutor to negotiate a plea to a lesser charge. Lesser charges normally considered by the prosecutor are reckless driving, alcohol related; straight reckless driving; or, careless driving. None of these charges normally carries the likelihood of a prison sentence. The reckless driving charges do, however, carry 6 points assessed against your Delaware driver's license. Reckless driving, alcohol related also will involve a judicial requirement that you take the same drinking/driving course that you would had you been convicted of DUI. In addition, reckless driving, alcohol related will count as a first offense DUI if you subsequently are convicted of DUI again. As you can see, except for the fact that reckless driving, alcohol related does not send you to prison, it is no walk in the park. Nor, for that matter is reckless driving with its associated 6 points. However, if a drinking driver is facing a second offense DUI with mandatory prison time find reckless driving a more palatable charge.

Careless driving is only 2 points; it is one of the least serious moving offenses under our Motor Vehicle Code. Under unusual circumstances, prosecutors will sometimes accept a plea to careless driving. Neither it nor straight reckless driving requires a drinking/driving educational course.

9. How many points do I get for DUI?

ANSWER: None. Points are assessed under Delaware law to assist the Department of Motor Vehicle in identifying problem drivers and determining which of those problem drivers should lose their driving licenses. Since DUI has its own built-in system for driving license revocation, a drinking driver does not receive any additional points based on a DUI conviction -- whatever slight comfort this is.

10. I went to J.P. Court and plead not guilty on my DUI ticket. The Justice of the Peace asked me if I wanted to leave my case in Justice of the Peace Court or move it to the Court of Common Pleas. What do you recommend?

ANSWER: We always recommend moving your case to the Court of Common Pleas, pleading not guilty and normally waiving a jury trial. Prosecutions in the Court of Common Pleas are handled by a Deputy Attorney General on behalf of the State. Often times if there is a weakness in a particular police officer's case, he will be unable to see it or unwilling to admit where an experienced prosecutor will be more likely to consider a plea bargain. In certain cases, the prosecutor can even be the Defendant's best friend in the Court of Common Pleas in dealing with an unreasonable police officer. In any event, the Deputy Attorney General has the final say over how any particular case is handled.

11. Why do you recommend waiving a jury trial?

ANSWER: Juries are not very sympathetic to people charged with drunk driving. In addition, a jury trial would take much more time than a trial before a Judge and fees for representation in such a jury trial would be much higher than what we would normally charge for a DUI trial before a Judge.

12. I have decided, if only because of my recent DUI arrest, that I have a real drinking problem. I am about to check into a 28 day residential alcohol treatment program. Will this help me convince the prosecutor that I should be permitted to plead to something other than DUI which might put me in prison?

ANSWER: It will not hurt to enter that 28 day program and if you have a problem with alcohol, you need it anyway. On the other hand, very few prosecutors seem to take that into account in determining how to handle a particular case.

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