SUMMARY OF DELAWARE‘S DRIVING UNDER THE INFLUENCE STATUTES
(EFFECTIVE JULY 10, 2007)
COMMON ACRONYMS USED TO DESCRIBE “DRUNK DRIVING”:
DUI – driving under the influence;
RAR – reckless driving alcohol related.
FOP – first offender election
IID – ignition interlock device
PROHIBITED VEHICULAR ACTIVITY: “Drive” is defined to include driving, operating, or having actual physical control of a vehicle. 21 Del. C. §4177(c)(3).
COVERED VEHICLES OR DEVICES: Delaware’s DUI Statute applies to vehicles, off-highway vehicles and mopeds. 21 Del. C. §4177(c)(4).
“Vehicle” is defined in 21 Del.C. §101(80) to include “every device in, upon or by which any person or property is or may be transported or drawn upon a public highway excepting devices moved by human power or used exclusively upon stationary rails or tracks and excepting electric trackless trolley coaches, electric personal assistive mobility devices and excepting off-highway vehicles (“OHV”).
OHV is defined in 21 Del. C. §101(39) as a motor driven off-road vehicle capable of cross-country travel without benefit of a road or trail, on or immediately over land, snow, ice, marsh, swampland, or other natural terrain. It includes, but is not limited to, a multi-wheel drive or low-pressure tire vehicle, a motorcycle or related two-wheel vehicle, an amphibious machine, a ground effect air-cushion vehicle or other means of transportation deriving motive power from a source other than muscle or wind. OHV does not include a farm vehicle being used for farming, a vehicle used for military, fire, emergency, or law-enforcement purposes, construction or logging vehicle used in performance of its common function, electric personal assistive mobility device or a registered aircraft. It does not include snowmobiles.
Moped is defined in 21 Del. C. §101(31) as a pedal or non-pedal bicycle having two tandem wheels, each of which is ten inches or more in maximum diameter, and having a motor characterized in that the maximum piston displacement is less than 55cc, rated at no more than 2.7 brake horsepower and that the maximum speed does not exceed 25 miles per hour.
COVERED LOCATIONS: Delaware’s DUI statute applies to any location within the State (including private property).
IMPAIRED DRIVING OFFENSES:
21 Del C. §4177(a)(1) – When the person is under the influence of alcohol;
21 Del.C. §4177(a)(2)- When the person is under the influence of any drug;
21 Del.C. §4177(a)(3) – When the person is under the influence of a combination of alcohol and any drug;
21 Del.C. §4177(a)(4) When the person’s alcohol concentration is .08 or more;
21 Del. C. §4177(a)(5) – When the person’s alcohol concentration is, within four hours after the driving, .08 or more. Notwithstanding any other provision of the law to the contrary, a person is guilty under this subsection, without regard of the person’s alcohol concentration at the time of driving, if the person’s alcohol concentration is, within four hours after time of driving .08 or more and that alcohol concentration is the result of an amount of alcohol present in, or consumed by the person when the person was driving;
21 Del. C. §4177(a)(6) – When the person’s blood contains, within four 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 or any amount of a substance or compound that is the result of the unlawful use or consumption of an illicit or recreational drug prior to or during driving.
21 Del. C. §4177J – Drinking while driving prohibited: No person shall consume an alcoholic beverage while driving a motor vehicle upon the highways of this State.
21 Del. C. §4177L – Being under the age of 21, operating or having actual physical control of a vehicle, an off-highway vehicle or a moped while consuming or after having consumed alcoholic liquor. .02 BAC or more is a per se violation.
DEGREE OF IMPAIRMENT REQUIRED:
21 Del.C. §4177(c)(1) – Alcohol concentration of .08 or more means:
(a) the amount of alcohol in a sample of a person’s blood equivalent to .08 or more grams of alcohol per hundred milliliters of blood; or
(b) an amount of alcohol in a sample of a person’s breath equivalent to .08 or more grams per two hundred ten liters of breath.
21 Del C. §4177(c)(5) – While under the influence means that the person is, because of alcohol or drugs or a combination of both, less able than the person would ordinarily have been, either mentally or physically, to exercise clear judgment, sufficient physical control, or due care of the driving of a vehicle.
PENALTIES FOR DRIVING UNDER THE INFLUENCE:
First Offense: Fine not less than $230.00 nor more than $1,150.00 or imprisonment not more than 6 months or both; alcohol evaluation and a course of instruction and/or rehabilitation which may include confinement not to exceed 6-months and a fee not to exceed the maximum fine. Any period of imprisonment may be suspended.
Second Offense: Occurring within five years, fine not less than $575.00, imprisonment not less than 60 days not more than 18 months. The minimum sentence may not be suspended.
Third Offense: Occurring within five years, constitutes a Class G Felony; Carries a fine not less than $1,000.00 nor more than $3,000.00 and imprisonment not less than one year nor more than two years. The first three months of imprisonment may not be suspended.
Fourth or Subsequent Offense: Occurring anytime after three prior offenses, constitutes a Class E Felony and carries a fine not less than $2,000.00 nor more than $6,000.00 and imprisonment not less than two years nor more than five years. The first six months may not be suspended.
Different penalties apply for a person who has not reached their 17th birthday.
STATUTORY DRUNK DRIVING PRESUMPTIONS:
BAC of more than .08 is per se evidence of driving under the influence. Any illicit recreational drug in the system constitutes driving under the influence.
IMPLIED CONSENT LAWS:
Tests permitted: Blood, breath or urine as designated by law enforcement agency.
Type of advisement required: Penalties for refusing testing.
Penalties for refusal: At trial, the Court may admit evidence of the refusal of such person to submit to a chemical test of breath, blood or urine. See, 21 Del. C. §2749.
Under 21 Del. C. §2742, if a person refuses to permit chemical testing, after being informed of the penalty of revocation for such refusal, the person’s driver’s license and/or privilege maybe revoked for a period of one year for a person with no previous violation within five years of the date in question; 18 months revocation for a person with one previous violation; and 24 months revocation for a person with two or more previous violations. Separate penalties apply in cases involving injury or death caused by persons driving or operation of a vehicle.
21 Del. C. §2746: Only duly licensed physicians, registered nurses, licensed practical nurses or other persons trained in medically accepted procedures for the drawing of blood and employed by a hospital or other healthcare facility, acting at the request of a police officer, may withdraw blood from a person submitting to a chemical test under this subchapter.
INDEPENDENT TEST STATUTE: None.
PLEA BARGAINING STATUTE: None.
Delaware Division of Motor Vehicles - www.dmv.de.gov