In Delaware, you may be arrested for Driving Under the Influence (DUI) if you are driving, operating, or in actual physical control of a vehicle, an off-highway vehicle, motorcycle or moped while under the influence of alcohol or drugs.
The illegal blood alcohol limit in Delaware is .08. That means that a chemical test (or breathalyzer) indicating a blood alcohol concentration (BAC) of .08% or greater, or the presence of any drug, prescription or illegal, is sufficient for a DUI arrest and conviction.
It is still possible however to be arrested for DUI with a BAC of below .08 if there is additional evidence of impairment such as failing the Standardized Field Sobriety Test administered by a police officer.
Delaware Implied Consent Laws
Delaware has an “implied consent” law. That means if you drive in Delaware and are suspected of DUI, you voluntarily agree to a chemical test to determine your degree of impairment.
Failure/refusal to take the test carries a penalty of loss of license and/or driving privileges for a period of:
|1st offense||-||12 months|
|2nd offence||-||18 months|
|3rd or subsequent offense||-||24 months in addition to the penalties for DUI|
How DUI’s Are Handled
DUI violations are dealt with under both administrative and court proceedings, which are conducted independently of each other. Juveniles under age 17 who are arrested for DUI (.08 or higher) are processed through Family Court, and lose their driver’s license until they turn 21. The administrative proceedings take place at the Department of Motor Vehicles office located closest to where you were arrested.
I. DUI ADMINISTRATIVE PROCEDURES
At the time of a DUI arrest, a police officer will take your Delaware driver’s license and issue a 15-day temporary license, unless you driver’s license has already been suspended or revoked.
You must request an administrative hearing at DMV within 15 days of your arrest or your driving privilege will be lost for a minimum of 3 months.
All DUI sentences are carried on the driving record for a minimum of 5 years.
Administrative Hearing Process
You may file a written request for an administrative hearing at any DMV facility. The administrative hearing will be held to determine:
* Probable cause – whether a police officer had probable cause to believe you were driving, operating or in actual physical control of a vehicle, while under the influence of alcohol and / or drugs.
* Preponderance of evidence – whether a preponderance of evidence exists that you were driving, operating or in actual physical control of the vehicle while under the influence of alcohol and / or drugs. A chemical test of .08% or greater or the presence of any drug is conclusive evidence that you were under the influence.
An unfavorable ruling from the Administrative Hearing Officer will result in loss of your driver’s license for: 1st offense – 3 months, 2nd offense – 12 months, 3rd offense – 18 months.
II. DUI COURT PROCEDURES
Listed below is the potential jail time, fines and length of driver’s license revocation that a DUI offender could be sentenced to by the Court. Please note that upon conviction, if there is a record of “refusal to take chemical test” then the offender will be subject to the highest possible length of license revocation for that offense.
Up to 12 months in jail $500-$1,000 in fines BAC below 0.15-12 months driver’s license revocation BAC .15 to .19- 18 months driver’s license revocation, Ignition Interlock (IID) mandatory BAC .20 or > – 24 months driver’s license revocation (IID mandatory),
2nd Offense Within 10 Years Of Prior Offense
60 Days (mandatory) to 18 months in jail $750-$2,500 in fines IID mandatory BAC up to .19-24 months driver’s license revocation BAC 0.20 or > – 30 months driver’s license revocation
3rd Offense Anytime After First 2 Offenses Is Also A Class G Felony
1-2 years in jail (3 months of which are mandatory) Up to $5,000 in fines IID Mandatory BAC below 0.15 – 24 months driver’s license revocation BAC 0.15-0.19 – 30 months driver’s license revocation BAC 0.20 or > – 36 months driver’s license revocation
4th Offense Anytime After 3 Prior Offenses Is A Class E Felony
2-5 years in jail (6 months of which are mandatory) Up to $7,000 in fines
B. FIRST OFFENSE ELECTION
At the time of arraignment, you may choose to apply for enrollment in a First Offense Election (FOE) program in lieu of standing trail. If you choose to apply, the application will constitute an admission of guilt, which means you waive your right to a speedy trial.
To be considered for a First Offense Election (may only qualify 1 time for FOE) one cannot have:
* A previous DUI
* Three or more moving violations within 2 years
* Caused injury to another person
* A BAC of .15% or greater
* Been a suspended or revoked driver or held no valid license at the time of the arrest
* Been transporting a child under 17 years of age or within a vehicle while under the influence
By applying for the First Offense Election you also agree not to request an administrative hearing at the Division of Motor Vehicles (DMV), or to withdraw any request previously made for this violation. The Court will notify DMV of your decision. DMV will revoke your license and /or driving privilege for a period of one year, in addition to any penalties that may apply as a result of your refusal to take a chemical test.
At the time of your First Offense Election you may request the Court to permit you to take the First Offense Election – IID Diversion option. This option allows you to drive after a minimum of 1- month loss of license and upon meeting the criteria outlined below:
* You held a valid Delaware driver’s license at the time of your DUI violation
* You agreed to take the chemical test at the time of your arrest
* Your revoked Delaware driver’s license has been surrendered to the Division of Motor Vehicles
* You have completed an alcohol evaluation and are enrolled in the designated alcohol program
* Your license is not suspended or revoked for any reason that would prevent the issuance of the IID license.
* The IID license provides unlimited Class D driving authority, provided you are driving the specified vehicle equipped with the ignition interlock devise and have the IID license in your possession.
C. CONDITIONAL LICENSE PRIVILEGES
A First Offense Election may be eligible to apply for a conditional license if they:
* Did not refuse to submit to a chemical test
* Satisfactorily completed a minimum of 16 hours in an education/ treatment program
* Pay all fees
* 3 months must have elapsed since the effective date of the revocation
* Do not drive during the revocation period
* Successfully complete a Character Background Review (if required)
* Pay $10.00 conditional license fee
A First Offense Election does not automatically guarantee the issuance of a conditional license or early reinstatement.
III. ALCOHOL EVALUATION AND TREATMENT PROCESS
Any individual arrested for DUI must schedule an evaluation with the Delaware Evaluation and Referral Program (DERP).
An individual may request an evaluation following their arrest, or an evaluation will be ordered by the Court, or by DMV. The evaluation costs $75.00. There is a $25.00 missed appointment fee. The evaluation and referral of a DUI offender is an information gathering and analysis process. The client meets with an evaluator to construct a personal history, including medical, legal, social, and psychological information. The evaluation takes approximately 1 hours.
The evaluation can consist of:
* A written and verbal evaluation
* Social history survey
* Substance abuse questionnaire
* Several essay questions
* Mental health symptom screening
* Client rights/confidentiality issues
* One on one interview with certified counselor
The information obtained from the evaluation, along with the evaluators review of the offender’s motor vehicle record and blood alcohol test results at the time of the violation, form the basis for analysis and recommendation. DERP will make a referral to one of the following types of programs.
Offenders must make contact with the agency within 30 days of the referral or risk being reported as “non – complied” back to the Court. Referrals are valid for 1 year.
A. EDUCATION PROGRAM
The major goal of the educational program is to help offenders take a careful look at their situation, take responsibility and ownership for their behavior and explore what it takes to solve the problems they’ve encountered.
B. Outpatient Treatment
Outpatient treatment programs offer a full range of treatment services to chemically dependent clients. The major goal of each agency is to provide services that will halt the progression of substance abuse. The standard program consists of a combination of individual and group counseling sessions over the course of approximately 3 months. All services are provided by professionals and are confidential.
C. Outpatient 21 and Under
This program is designed to provide treatment to young offenders, ages 21 and under. Treatment consists of group, individual and family counseling sessions. Family members are encouraged to become involved in the overall treatment experience.
D. Alternative Program (Mental Health)
This program offers an alternative to DUI offenders who are experiencing mental and emotional adjustment problems in addition to their substance abuse dependencies. The program’s major focus is to alter patterns of behavior that could lead to subsequent DUI violations.
OUTPATIENT TREATMENT PROGRAM, 21 AND UNDER PROGRAM AND ALTERNATIVE PROGRAM FEES: $600.00 Program Fee $25.00 fee for each missed group Random urine screen fees as necessary
IV. ADDITIONAL INFORMATION
A. Ignition Interlock Program (IID)
Individuals eligible for IID are:
* First Offense Election – IID Diversion – Election must be made at Court
* 1st Offenders with BAC’s > .15 and 2nd or Subsequent DUI Offense (IID is mandatory)
This is a voluntary program that is paid for solely by the offender. The cost is approximately $70.00 for installation and $75.00 per month plus tax to rent the equipment. There is a $30.00 deposit, due at the time of installation, which is refundable when the devise is removed. An offender must apply through DMV for this program.
The IID license authorizes the holder to operate a vehicle with full Class D operator driving privileges only when the vehicle is equipped with an ignition interlock devise. The IID devise is not available for CDL class vehicles. A Delaware registered vehicle must be used for the ignition interlock devise program.
B. License Reinstatement Process
An offender is eligible for license reinstatement if they have:
* Not driven during the revocation period
* Satisfactorily completed an alcohol education/treatment program
* Paid all fees
* Turned the revoked license in to DMV for the required length of time
* Successfully completed a DMV Character Background Review ( if required)
* Paid $143.75 reinstatement fee to DMV.
* License re-examination may be required.
C. Character Background Review Process
Character Background Review – Who needs on?
* If you had a BAC of .15 or above
* Any 2nd or subsequent offender
How is it done?
This process is generally done within a month of when an offender will be eligible for re – licensure.
* Request an application from DMV – Dover (302) 744-2508
* Call DMV interviewer for appointment
* Complete form with 6 references – name, address, and phone numbers
* Meet with interviewer – bring application and reference information
* Interviewer will mail a form to your references
* Your references will have two weeks to return the forms to the interviewer
* A decision will be made and mailed to offender
D. Out – of – State Violations
Offenders who are arrested in another state must contact the Delaware Evaluation and Referral Program to schedule an appointment for an evaluation. Once the evaluation is completed, this agency will request the paperwork from the state where the arrest was made. Once the offender has completed the program satisfactorily, the Delaware Evaluation and Referral Program will forward the information to the arresting state. An out-of-state conviction for offenders who hold a Delaware Drivers License will result in license revocation.
E. Out-of-State Offenders
Offenders who are arrested in Delaware but are licensed and live out of state are required to meet the Delaware requirements for alcohol evaluation and treatment program completion. The offender must contact the Delaware Evaluation and Referral Program and make arrangements through that office to have an alcohol evaluation conducted in the offender’s home state. The offender must also satisfactorily complete an alcohol program that meets Delaware requirements.
F. Zero Tolerance Law
If you are under 21 years of age, as little as one drink can make it illegal for you to drive. The law says that anyone under the age of 21 years, who drives, operates or has actual physical control of a vehicle, an off-highway vehicle, or a moped while consuming or after having consumed alcohol, shall have their driver’s license revoked for a period of 2 months for the first offense and not less than 6 months or more than 12 months for each subsequent offense. If the under aged person does not have a driver’s license, the person shall be fined $200.00 for the first offense and not less than $400.00 nor more than $1,000.00 for each subsequent offense.
If you are facing drunk driving charges in Delaware it is a wise move to consult with Delaware DUI Defense Attorney Andrew Rahaim by dialing 302-892-9200. He server those accused of crimes, drunk driving charges and traffic violations throughout New Castle County, Delaware.