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, or a moped while under the influence of alcohol or drugs.
A chemical test indicating .08% blood alcohol concentration (BAC) or greater, or the presence of any drug, prescription or illegal, substance is sufficient for a DUI conviction. You may be arrested for DUI with a chemical test greater than .05%
DUI violations are dealt with under both administrative and court proceedings, which are conducted independently of each other. Juveniles arrested for DUI and processed through Family Court could lose driving privileges until they reach legal drinking age.
Implied Consent:
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 the degree of impairment.
Failure to take the test carries a penalty of loss of license and/or driving privileges for a period of one year for a 1st offense, 18 months for a 2nd offense and 24 months for the 3rd subsequent offense, in addition to the penalties for DUI.
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 your driver’s license has already been suspended or revoked.
You must personally 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 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 the evidence – whether a preponderance of the evidence exists that you were driving, operating, or in actual physical control of a vehicle while under the influence of alcohol or drugs. A chemical test of .08% or greater of the presence of any drug is conclusive evidence that you were under the influence.
- Chemical Test Refusal – whether you refused a chemical test after being informed of the revocation penalty for refusing such a test.
If you receive an unfavorable ruling at the administrative hearing or fail to request a hearing, your license or driving privilege will be revoked for:
- 3 months for the first offense
- 12 months for the second offense
- 18 months for the third or subsequent offense
The penalties for Refused Chemical test are:
- 12 months for the first offense
- 18 months for the second offense
- 24 months for the third or subsequent offense
DUI Court Procedures
At the time of arraignment, you may elect to apply for enrollment in a First Offense Election program in lieu of standing trial. If you elect to apply, the application will constitute an admission of guilt and a waiver of the right to a speedy trial. 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 for the First Offense Election and any applicable period of revocation for the administrative action of probable cause or refused chemical test. (See penalties listed above)
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 had no valid license at the time of the arrest
- Been transporting a child under 17 years of age on or within a vehicle while under the influence
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 the benefit of driving authority after a minimum of 1-month loss of license 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 for a minimum of 1 month
- You have completed an alcohol evaluation and are enrolled in the designated alcohol program.
- Your license is not suspended or revoked for any reason which would prevent the issuance of the IID license
*State of Delaware Division of Motor Vehicles
