Delaware’s DUI Laws and Conviction Penalties

Like all states, Delaware prohibits driving under the influence of drugs or alcohol. Within this broad prohibition are actually three separate criminal offenses—a person can be guilty of DUI for driving while being impaired, having an excessive alcohol content, or having consumed illegal drugs. Delaware has specific statutes defining each of these offenses and the limits, as well as how "driving" is defined.

This article explains the requirements for a violation, the possible penalties an offender may face, and some options to possibly avoid a conviction.

Delaware's DUI Laws

To convict a driver of DUI in court, prosecutors must prove the motorist was driving or in actual physical control of a vehicle:

• while "under the influence" of any alcohol or drug
• with a blood alcohol concentration (BAC) of at least .08%, or
• when the driver's blood unlawfully contained any amount of illicit drugs.

In other words, a DUI conviction can be based on BAC, alcohol impairment, or a failed drug test.

What It Means to be "Driving or in Actual Physical Control "of a Vehicle in Delaware

The "driving" portion of the DUI statute is straightforward. Most DUI cases involve a traffic stop of a moving vehicle for some sort of traffic violation. In these situations, there's no question that the motorist was driving.

However, under the definition of "actual physical control," a DUI does not necessarily require a moving vehicle. Actual physical control extends to any person who could reasonably become a danger to persons or property. In determining whether a person was in actual physical control of a vehicle, the judge or jury will generally look at the person's present ability to start and engage the vehicle, including factors like:

• whether the vehicle was running
• whether the offender was in the driver's seat, and
• whether the keys were in the ignition.

In other words, factors that might indicate the motorist was in a position to easily put their vehicle in gear and drive away.

Proof of Intoxication for a DUI Offense in Delaware

Under the influence. In Delaware, a driver is considered to be under the influence if his or her ability to exercise clear judgment, sufficient control, or due care in driving a vehicle is less than it would be ordinarily. In other words, the prosecutor must prove that the driver's ability to drive was somehow (physically or mentally) diminished.

DUI based on BAC. Alternatively, a driver can be convicted of DUI if he or she had a BAC of at least .08%. A driver with an unlawful BAC is considered to be "per se" under the influence and can be convicted of a DUI without proof of actual diminished capacity.

DUI based on illicit substances. Delaware also has a zero-tolerance policy for operating a vehicle with any amount of consumed illegal controlled substance in your system. A driver who tests positive for any illegal controlled substance can be convicted of a DUI without proof of diminished capacity. A driver who is lawfully prescribed medication can use the physician's prescription as a defense if taken as prescribed.

Penalties for a 1st and 2nd DUI in Delaware—Misdemeanor DUIs

Generally, a first or second DUI conviction will be charged as a misdemeanor. For a first or second offense, the court will count only prior convictions within the last ten years.

Jail and Fines for 1st and 2nd Delaware DUI Convictions

The chart below outlines the range of jail time and fines for a first and second DUI conviction in Delaware.

Substance Abuse Evaluations for Delaware DUI Offenders

For most DUI convictions, the court will order the offender to complete a drug and alcohol evaluation as part of sentencing. Based on the evaluation results, the court can order the offender to enroll in treatment or some other rehabilitative program.

Enhanced DUI Penalties for Having Minor Passengers

An impaired driver who was transporting a passenger under the age of 17 will face an additional $500 to $1,500 in fines and 40 hours of community service. A second or subsequent-offense DUI that involves underage passengers carries an additional $750 to $2,500 fines and 80 hours of community service.

Court of Common Pleas

Delaware has a special DUI program called the court of common pleas that replaces some or all of the minimum jail time with intensive supervision. Program participants will be placed on probation. During this period, the offender must enroll in and complete a court-assigned treatment program as well as maintain sobriety (which will be supervised by the court) and may be required to complete community service.

Penalties for a 3rd or Subsequent DUI in Delaware—Felony DUIs

A third-offense DUI in Delaware will be charged as a felony. A DUI is considered a third offense if the driver has two prior DUI convictions within their lifetime.

Jail and Fines for 3rd or Subsequent Delaware DUI Convictions

Here are the possible fines and jail time for felony DUI convictions.

Despite these "mandatory minimum" jail times, judges are allowed to suspend part of a defendant's sentence. So, in some cases, the defendant might end up serving less jail time than the minimums listed above.

Treatment Requirements for Felony DUIs in Delaware

Felony offenders are required to complete a 90-day abstinence program, which includes remote monitoring and random testing. The court can also order the completion of an inpatient rehabilitation program.

License-Related Penalties for Delaware DUI Offenses

Getting caught driving under the influence generally leads to license-related penalties. The penalties depend on the driver's BAC, the number of prior offenses, and whether the driver refused to comply with required alcohol or drug testing.

License-related penalties can result from a DUI arrest and/or conviction.

Delaware's Implied Consent Law

Delaware's "implied consent" law generally requires all drivers who are lawfully arrested for driving under the influence to submit to breath, blood, or urine testing when requested to do so by an officer. These tests are generally used to determine the presence of drugs and/or alcohol in the driver's system. While drivers are technically allowed to refuse testing, doing so generally leads to license-related penalties.

Refusing a Chemical Test in Delaware

When a driver refuses to take a chemical test, the officer will submit a report to the Department of Motor Vehicles (DMV). The DMV will then revoke the driver's license for:

• one year for a first offense
• 18 months if the driver has one prior refusal or DUI conviction within the last five years, and
• two years if the driver has two prior refusals and/or DUI convictions within the last five years.

The suspension periods will run consecutively (back-to-back) to any license-related penalty from a DUI conviction.

Also, prosecutors can use the fact that a driver refused testing in court to prove culpability in a DUI criminal trial.

License Revocation for DUI Convictions in Delaware

All DUI convictions result in driver's license suspension. The suspension period depends on the number of prior offenses and the driver's BAC.

A fourth or subsequent DUI conviction results in a 60-month license revocation.

Reducing a DUI Suspension and Applying for Reinstatement Following Revocation

Revoked drivers can generally apply to the DMV for a conditional license during the revocation period. The conditional license generally allows for travel to and from work and home but might have limitations on the hours of operation. Also, the holder is subject to continuous sobriety monitoring, which requires the use of an ignition interlock device (IID) on any operated vehicle.

Generally, applicants must serve at least part of the revocation period prior to receiving a conditional license. This period is 30 days for a first offense, 60 days for a second offense, and 90 days for a third offense. Drivers with excessively high BACs may have to wait longer.

Drivers who obtain an IID restricted license not only gain limited driving privileges during revocation, but also fulfill IID requirements necessary for license reinstatement (discussed below).

llD Requirements for Reinstatement

Prior to license reinstatement, all revoked drivers must complete any court-ordered treatment programs and maintain an IID for a certain period of time. These periods are listed below.

The IID requirement continues to increase for subsequent violations, up to 54 months.

Delaware's Underage DUI Laws

In Delaware, drivers who are under 21 years of age are prohibited from driving with a BAC of .02% or more. Drivers who are caught violating this rule will face both criminal and administrative penalties.

Criminal Penalties for Underage DUIs in Delaware

A driver convicted of an underage DUI will not receive jail time but instead must pay $200 to $1,000 in fines and complete a drug and alcohol evaluation and any recommended treatment. The driver's license will also be revoked for two months for a first offense and six to 12 months for a subsequent offense.

An underage driver who had a BAC of .08% or more, was legally "under the influence," or had ingested illegal drugs can be charged with a standard DUI offense.

Administrative Consequences of an Underage DUI in Delaware

Just as with a DUI chemical test request, an underage driver arrested for drinking and driving will generally be asked to submit to a breath, blood, or urine test. An unlawful refusal will result in license-related penalties.

An underage driver who refuses testing will be revoked for two months for a first violation, six months for a second violation, and 12 months for a third violation (within the last five years). This is in addition to any other license revocation period imposed for a conviction.

Delaware's First Offense Election Program

Drivers facing a first-offense DUI can possibly get the charges dismissed by completing the state's "First Offense Election Program."

The program is only available to drivers with no prior DUI convictions and is not available if the DUI involved injuries or minor passengers. Generally, program participants must complete a court-approved treatment program, pay $250 in fines, and complete a one-year license revocation. However, the driver can immediately receive an IID restricted license during the revocation period.

After successfully completing all requirements, the court will dismiss the DUI charge, and the driver can apply for license reinstatement. Although dismissed, the offense can be counted as a prior offense if the driver is convicted of a DUI in the future.

Talk with a Delaware DUI Lawyer

Delaware does not prohibit plea negotiations for DUI charges so it may be possible to reduce a DUI charge to a lesser offense. Consult with an experienced DUI attorney regarding your options.