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.
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. You may obtain a request for administrative hearing online from our web site or any DMV facility.
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
Effective February 2, 2015, the IID program became mandatory for all first and subsequent offenders who received a DUI violation on or after February 2, 2015. This mandatory program requires all first time offenders, regardless of BAC, and all subsequent DUI offenders to have the IID installed on a vehicle that is registered in their name or a vehicle that is accessible to them, after serving a minimum mandatory period of revocation. An IID license cannot be issued until the participant has met all minimum qualifications. The IID license authorizes the holder to operate a vehicle that has the IID installed. The IID license is not available for CDL class vehicles or valid for any peripheral endorsements. A Delaware registered vehicle must be used for the Ignition Interlock Device Program. For additional information regarding the IID programs or Ignition Interlock Program application form, please contact the IID Unit at 302-744-2540.
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, an evaluation will be ordered by the court, or by DMV. The evaluation costs $100.00. There is a $35.00 missed appointment fee. The evaluation and referral of a DUI offender is an information gathering and analysis process. The client meets individually with an evaluator to construct a personal history, including medical, legal, social, and psychological information. The evaluation takes approximately 1+ hours.
The evaluation consists 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 offenders 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 non-complied back to the court. Referrals are valid for 1 year.
The major goal of the educational program is to help offenders take a careful look at their situation, take responsibility and ownership for their situation and explore what it takes to solve the problems they've encountered. Fees:
- $250.00 program fee
- $35.00 fee for each missed session
Full-service 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 alter the progression of substance abuse. The standard program consists of a combination of individual and group counseling sessions over a course of approximately 3 months (25 hours). The treatment approach is based on the premise that people can make responsible decisions if they have good information and are aware of alternative solutions. All services are provided by professionals and are confidential.
Outpatient 21 and Under
This program is designed to provide treatment services to young offenders, ages 21 and under. The programs consist of group, individual and family counseling sessions. Family members are encouraged to become involved in the overall treatment experience.
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 programs 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:
- $750.00 program fee
- $35.00 fee for missed group session
- $35.00 fee for missed individual session
- Random urine screen fees as necessary
License Reinstatement Process
In order to be eligible for license reinstatement an offender must:
- Satisfactorily complete an alcohol education/treatment program
- Paid all fees
- The revoked license has been turned in to DMV for a minimum of 6 months
- Pay reinstatement fee to DMV
- License re-examination may be required
- No driving during the revocation period
Ignition Interlock Program (IID):
Individuals eligible for IID are:
- First Offense Election - IID Diversion - Election must be made at Court
- Refused Chemical Test Offenders
- 2nd or Subsequent DUI Offense
This is a voluntary program that is paid for solely by the offender. The cost is for installation and per month to rent the equipment. An offender must apply through DMV for this program. You can obtain a copy of the Ignition Interlock Program Application at our web site or any DMV facility. The IID license authorizes the holder to operate a vehicle with full Class D operators driving privileges only when the vehicle is equipped with an ignition interlock device. The IID license is not available for CDL class vehicles. A Delaware registered vehicle must be used for the ignition interlock device program.
Effective February 2, 2015, the IID program becomes mandatory for all first and subsequent offenders who receive a DUI violation on or after February 2, 2015. This mandatory program will require all first time offenders, regardless of BAC, and all subsequent DUI offenders to have the IID installed on a vehicle that is registered in their name or a vehicle that is accessible to them, after serving a minimum mandatory period of revocation. An IID license cannot be issued until the participant has met all minimum qualifications. The IID license authorizes the holder to operate a vehicle that has the IID installed. The IID license is not available for CDL class vehicles or valid for any peripheral endorsements. A Delaware registered vehicle must be used for the Ignition Interlock Device Program. For further information regarding the IID programs or Ignition Interlock Program application form, please contact the IID Unit at 302-744-2508.
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 when 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. Offenders convicted out-of-state who hold a Delaware drivers license will result in license revocation.
Offenders who are arrested in Delaware but are licensed and live out-of-state are required to meet the Delaware requirements for the alcohol evaluation and 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.
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 age 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 an offender is unhappy with the outcome of the education and/or treatment program, Delaware allows for an appeal of the program completion. An appeal is administered through the Department of Health and Social Services Alcohol and Drug Screening and Evaluation. To submit an appeal an offender must:
- Write a letter stating the reason for the appeal (this may not be based on cost or length of program)
- Submit a letter of reference from an employer, clergy person, or friend stating offender's ability to meet current responsibilities
- Complete waiver forms to allow for information to be shared with appeal team members
- Information must be submitted within 30 days of the appeal request
The appeal team will review the information and advise the offender by letter of their decision.
The decision of the Appeal Team is final.