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I just got arrested for a State of Delaware DUI charge.  What happens now?

 

ISSUE ONE:  The Delaware Implied Consent Proceeding / Administrative Penalty:  Every state including Delaware has some type of "implied consent law."  Implied consent is a concept in Delaware law that holds that anyone who operates a motor vehicle in the State of Delaware is deemed to have consented to have a chemical (breath / blood / urine) test administered in order to determine alcohol level or presence of drugs, whenever a law enforcement officer has probable cause to believe the driver is operating the motor vehicle under the influence.  Like most states, Delaware imposes penalties for failing (generally 0.08 percent BAC or greater) or refusing a chemical test―a license revocation.

 

Pursuant to Delaware's implied consent law, you probably received notice that your Delaware drivers license (or your right to drive in Delaware if you're not a Delaware licensed driver) is scheduled to be revoked for anywhere from three months to two years for failing or refusing a chemical test.  If you had a valid Delaware license at the time of your arrest, you also should have received a temporary license that is good for 15 days.

 

DELAWARE IMPLIED CONSENT REVOCATION LENGTHS FOR PERSONS 21 AND OLDER
INCIDENT TEST FAILURE TEST REFUSAL
First Offense 3 months 12 months
Second Offense 12 months 18 months
Third Offense 18 months 24 months

 

Read your paperwork carefully.  You only have a short time (generally 15 days) to make a written appeal request if you want to challenge this proposed revocation (sometimes known as a DMV Hearing).  The temporary license may be extended at the time of your appeal.  The temporary license will be revoked at the end of the 15-day period if no hearing / appeal is requested.

 

 

ISSUE TWO:  The Delaware DUI Criminal Case:  Separate from the implied consent revocation is the criminal charge for driving under the influence (DUI).  In Delaware, it is unlawful for you to drive a vehicle:

(1) When you are under the influence of alcohol;

(2) When you are under the influence of any drug;

(3) When you are under the influence of a combination of alcohol and any drug;

(4) When your alcohol concentration is 0.08 percent or more;

(5) When your alcohol concentration is, within 4 hours after the time of driving 0.08 percent or more; or

(6) When your blood contains, within 4 hours of driving, any amount of an illicit or recreational drug that is the result of the unlawful use or consumption of such illicit or recreational drug drug prior to or during driving.

Important:  The implied consent / administrative license suspension proceeding and the criminal DUI case are completely separate from one another. 

 

Will my Delaware driver license be revoked / suspended?

 

RELATED TO ISSUE ONE ABOVE:  As outlined above, your Delaware drivers license (or your right to drive in Delaware if you do not have a valid Delaware license) may be revoked pursuant to Delaware's implied consent law for failing or for refusing a chemical (breath / blood / urine) test.  Again, you may challenge this revocation by requesting an administrative hearing with the Division of Motor Vehicles within 15 days of your arrest.  If you do not request a hearing or if your hearing is unsuccessful, the revocation is imposed.

 

 

RELATED TO ISSUE TWO ABOVE:  If you are convicted of the DUI charge, you will also lose your license (or your right to drive in Delaware if you don't have a valid Delaware license) for 12 to 60 months depending on the underlying incident and your prior DUI history.  This revocation is distinct from the implied consent / administrative license revocation.  Talk to your Delaware DUI attorney for possible revocation lengths for your situation.

 

 

Also keep in mind that your license can be suspended for a variety of reasons unrelated to a DUI arrest e.g. excessive points under the Driver Improvement Problem Driver Program etc.

 

I have a commercial driver license (CDL) in Delaware.  What will happen to my CDL after my DUI Arrest?

 

A Delaware CDL holder faces a potential significant disqualification period for their CDL if they receive a DUI.  Refer to the table below:

 

DELAWARE CDL DISQUALIFICATION PERIOD FOR DUI RELATED INCIDENTS
INCIDENT FIRST OFFENSE SECOND OFFENSE
Any DUI conviction (regardless of whether you're in a CMV) one year lifetime
BAC of .04 % or greater while in a CMV one year lifetime
Breath test refusal (regardless of whether you're in a CMV) one year lifetime
Hit and Run conviction one year lifetime
Note 1:  If DUI is committed in a commercial vehicle while hauling hazardous materials the disqualification period is three years.

 

What happens if I get caught driving while my license is suspended / revoked?

 

Driving while your license is revoked should be avoided as it is a new misdemeanor offense.  Penalties include a fine. 

A conviction for driving during suspension or revocation will also extend the period of suspension or revocation for a like period  of time up to one year.  No driving is allowed during the balance of the initial suspension / revocation and the extended period. 

 

I really need to drive.  Will I be able to get a occupational / conditional / IID license?

You may be eligible for an Ignition Interlock Device (IID) license if you enter the First Offense Election - Ignition Interlock Device (FOE-IID) Diversion program (more on that below).  If you enter this program, you may obtain an Ignition Interlock Device License provided that you had a valid Delaware license at the time of your arrest.  Among other things, you must:

  1. You must provide proof of enrollment in an approved treatment / education course as designated by the court;
  2. At least one month must elapse from the day your revoked license was received by the DMV;
  3. You must complete an Ignition Interlock Program application;
  4. You must provide proof of insurance for the vehicle to which the Ignition Interlock Device is to be installed.

If you're convicted of a DUI, you may also be eligible for an Ignition Interlock Device License provided that you meet more stringent guidelines.  An IID License can enable you to drive much sooner provided that you meet and maintain the license requirements (including having a valid Delaware drivers license at the time of your arrest).  Among other things:

  1. You must provide proof of enrollment in an approved treatment / education course as designated by the court;
  2. Your DUI offense must not have involved death or serious injury to any person;
  3. Your license must first be surrendered to the DMV for 2 months for a 12-month revocation, 6 months for an 18-month revocation, or 12 months for a 24-month revocation;
  4. You must complete an Ignition Interlock Program application;
  5. You must have a favorable Character Background Review by the Division of Motor Vehicles.

Speak with your Delaware DUI attorney for more information on an IID License.  An IID License will NOT allow you to drive commercial vehicles.

What is the difference between a DUI, DWI, OUI, OWI etc.?


These terms are all acronyms that refer to the offense commonly known as "drunk driving."  Different states have different names for the crime.  For example, in New Jersey the charge is known as driving while intoxicated or DWI.  Montana uses the term DUI for driving under the influence.  Oregon uses DUII for driving under the influence of an intoxicant.

Delaware law uses the phrase driving under the influence so the acronym DUI is most commonly used here.  This website uses the terms DUI and DWI interchangeably.

 

Is an DUI in Delaware a misdemeanor or felony charge?

 

In Delaware, a first or second DUI conviction is a misdemeanor.  A third DUI conviction within five years is felony crime as is a fourth or greater DUI conviction no matter how old the prior offenses.

 

What type of penalties might I face if I am convicted of an Delaware DUI charge?

 

Upon conviction of an Delaware DUI offense, a defendant can receive a variety of penalties including alcohol screening / treatment / program.  A range of minimum penalties is set forth below: 

 


DELAWARE DUI PENALTY CHART

 DUI CONVICTION TYPICAL PENALTIES
FIRST DELAWARE DUI
misdemeanor
  • License revocation for one to two years depending on your BAC;

  • Jail time possible up to six months;

  • $500 + in fines.

SECOND DELAWARE DUI
misdemeanor
See Note 1
  • License revocation of 12 to 30 months depending on your BAC;
  • At least 60 days jail;
  • $750 + in fines.
THIRD DELAWARE DUI
third offense within five years is a felony;
otherwise a misdemeanor
See Note 1
  • License revocation of 12 to 30 months;
  • One to two years imprisonment;
  • $1500 + in fines.
FOURTH DELAWARE DUI
felony
  • Five year license revocation;
  • Two to five years prison;
  • $3000 + in fines.
Note 1:   Within five years of a DUI conviction, FOE-IID Diversion program, or an alcohol related reckless driving conviction.

Will my defense lawyer be able to plea bargain / negotiate my Delaware DUI charge down to another (lesser) offense?

Possibly.  A reckless driving alcohol related charge may be possible.  Additionally, certain individuals may qualify for the First Offense Election (FOE) - Ignition Interlock Device (IID) Diversion program.  To be eligible for the program you must meet the program requirements:

  • No prior DUI convictions;

  • Have a valid Delaware license at the time of arrest;

  • Had a BAC of less than 0.15 percent;

  • Have no child in the car at the time of your DUI; and

  • Have no injuries caused by the DUI incident;

  • Have less than three moving violations in the past two years.

If eligible and interested, a you must apply for enrollment in FOE-IID Diversion at the time of your arraignment.  To participate in the diversion program you also must waive any speedy trial rights you have and waive your right to challenge your implied consent license suspension. 

Upon entry into the FOE-IID program, you may apply for an Ignition Interlock license.

Speak to your Delaware lawyer about whether you're eligible to apply for this diversion program and whether its right for you.

Will an Delaware DUI go on "my driving record?"

Yes.  An DUI conviction will go on your Delaware driving record as will participation in the First Offense Election - Ignition Interlock Device Diversion program

Just how much jail / prison time will I have to do if I am convicted of a DUI in Delaware?

The amount of incarceration (jail or prison) received will depend on a number of factors, including (but not limited to) the following:

•  your prior driving record especially your DUI history (including any DUI's / OWI's / DWI's outside of Delaware);

•  your level of intoxication (a high BAC) / test refusal may result in greater penalties);

•  whether there was an accident involved;

•  whether there was bodily injury to another person in the collision;

•  which Delaware court your case is in;

•  what judge you are sentenced by;

•  whether there was a passenger especially a child in your car;

•  whether the court feels you have accepted responsibility.

 

I am licensed to drive in a state other than Delaware and I was cited for a DUI in Delaware.  Will my driver license be revoked or suspended?

Delaware only has the authority to suspend your right to drive in the State of Delaware.  However, Delaware and 44 other states and the District of Columbia have adopted an agreement known as the "Driver License Compact."  Pursuant to the Compact, Delaware will report an DUI conviction to the home state of the driver (assuming the home state has also adopted the Compact).  Your home state will then generally take action to suspend or revoke your license.

This also works in reverse.  If you are a Delaware licensed driver and you are convicted of a DUI / DWI / OWI charge in another state, Delaware will revoke your license (as if you were convicted in Delaware) assuming it learns of the conviction.

Will I have to install an Ignition Interlock Device on my car?

 

A ignition interlock device (IID) is a breath alcohol measurement device that is connected to an automobile ignition.  In order to start the vehicle, a driver must blow a breath sample into the device which then measures alcohol concentration.  If the alcohol concentration exceeds the startup set point on the interlock device, the motor vehicle will not start.  Drivers also have to periodically provide a breath sample during the trip. 

 

The State of Delaware requires installation of an IID in two ways.  Under the First Offense Election - Ignition Interlock Device (FOE-IID) Diversion programs and an IID is also required for most persons convicted of a DUII offense.  For more information regarding the IID programs, contact the Delaware DMV revocation section at (302) 744-2508 or your attorney.

What will an Delaware DUI do to my insurability?

If your insurance company finds out about your Delaware DUI one of two things are likely to happen.  Either your Delaware insurer will raise your rates or your policy may be cancelled or non-renewed.  Delaware does not require an SR-22 filing if you get convicted of a DUI charge (many other states do).

What happens if I was on probation for another crime when I picked up my Delaware DUI charge?

Committing a new offense while you're on probation for a previous crime creates at least two problems. First, you face the new Delaware DUI charge.  Second, you face a probation violation hearing for failing to obey all laws.  The most serious scenario is when you receive a new Delaware DUI charge when you're already on probation for a previous DUI / DWI conviction.  When this happens, it's in your best interest to speak to a Delaware DUI attorney as soon as possible.

Are there special concerns for licensed pilots who get an Delaware DUI?

 

Yes.  The FAA has special reporting requirements for certain Motor Vehicle Actions including Delaware DUI convictions and implied consent / administrative suspensions.  Learn more here.

Are there special concerns for mariners licensed by the Coast Guard?

Yes.  Applicants for a Coast Guard credential must disclose all criminal convictions on their application forms.  In addition, the Regional Exam Center (REC) performs a national Driver Register check on applicants.  Once a DUI conviction is identified, the REC evaluates the applicant's conviction and facts surrounding the incident.

I missed my Delaware court appearance.  What do I do now?

Failing to appear (FTA) for court is to be avoided.  When you miss a court appearance, bad things follow.  At a minimum, the Delaware court typically issues a warrant for your arrest (known as a bench warrant).  Sometimes, failing to appear will result in a new criminal charge.  Talk to a lawyer as soon as possible.  Often, your only option is to turn yourself in on the outstanding warrant.  A new court date will then be scheduled.

Can I represent myself in court on my Delaware DUI and / or other criminal charge(s)?

Yes.  You have a constitutional right to represent yourself on any criminal offense no matter how serious including a Delaware DUI.  Keep in mind that DUI defense is a complex legal area as shown by the information in this website.  If you cannot afford to hire your own criminal defense attorney, you definitely should apply for court appointed counsel to represent you.  You have no right to court appointed counsel at the implied consent license proceeding.

Copyright 2013, 2012, 2011, 2010, 2009

 

Websites, including this one, provide general Delaware DUI / DWI information but do not provide legal advice or create a lawyer / client relationship.  General information cannot replace legal advice specific to your case, problem, or situation.  Consult qualified Delaware Drunk Driving - DUI - DWI lawyers / attorneys for advice about any specific problem or Delaware DUI / DWI charge that you have.  Delaware attorneys / lawyers are governed by the Delaware Rules of Professional Conduct.  This website may be considered an advertisement for services under these Rules.  Information contained in this website is believed to be accurate but is not warranted or guaranteed in any way.  No lawyer associated with this website is specialized or certified in any way.  This site is not a solicitation for attorney services; rather, it is purely informational.  DE DUI FAQ's.  2013.

 

Providing drunk driving (DUI / DWI) and criminal defense assistance to the communities of:  Wilmington, Dover, Newark, Milford, Seaford, Middletown, Elsmere and Sussex County, New Castle County, and Kent County.  Delaware attorneys may accept Visa, American Express, Discover, and MasterCard credit cards. 

 

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