Delaware DUI Laws

For successive years of 2020 and 2021, Delaware’s Annual Traffic Statistical Reports revealed that 30% of all the fatal crashes in the state had alcohol involvement. Of all the drivers killed in those crashes in 2020, 43% were found to have been under the influence of alcohol and/or drugs. These figures improved in 2021 when only 36% of all the drivers killed in fatal crashes were found to have alcohol and/or prohibited substances in their systems.

The 2022 Delaware Annual Traffic Statistical Report showed further improvement when it came to drunk driving in the state. Of all the recorded fatal crashes, only 27% had alcohol involvement—a nearly 10% drop from the previous year’s figures. Moreover, of all the drivers killed in these collisions, only 33% were confirmed to have been driving under the influence.

When compared to the national average, Delaware is among the states with the lowest DUI-related arrests. The American Addiction Centers, in a study published in January 2023,  noted that the First State had the third lowest rate of DUI arrests throughout the country. This was echoed by a Forbes Advisor study, which listed Delaware as having the third-lowest DUI arrests per 100,000 licensed drivers.

One of the most likely reasons that Delaware is able to generally keep DUI incidents low is its stringent policies to curb drunk driving. This article provides a rundown of the DUI laws and regulations locals and visitors need to know to help maintain transport safety throughout the state.

DUI Definition in Delaware

In Delaware, if you or anyone else is consuming or has consumed alcohol while in actual physical control of a vehicle or driving or operating one, then you can be arrested for DUI. The same applies if an off-highway vehicle or a moped is involved.

The blood alcohol content limit in Delaware is 0.08%, a rule that has been in force since 2004. If your BAC shows 0.08% or higher after performing a chemical or breath test and within four hours of driving, this is reason enough for you to be arrested and convicted of DUI. 

You can also be arrested for DUI even if your BAC is only 0.05% if a police officer finds evidence of impairment. One of the usual instances in which this happens is if the driver fails any of the Standardized Field Sobriety Tests, such as the one leg test, the walk and turn test, and the horizontal gaze nystagmus test.

Delaware’s Implied Consent Law

Delaware follows an “implied consent” law. This means that if you are driving within the state and are apprehended by law enforcement on DUI suspicions, it is automatically understood that you voluntarily agree to undergo a chemical test to establish your degree of impairment (if any).

If you fail the test or refuse to take one altogether, you will lose your license and/or privilege to drive in the state. The penalties are applied as follows:

• First offense - 12 months

• Second offense - 18 months

• Third or subsequent offense - 24 months on top of the DUI penalties

DUI violators in Delaware face both administrative and judicial proceedings, which are carried out separately from each other. Moreover, DUI sentences are retained in one’s driving record for at least five years.

Delaware DUI Administrative Procedures

Once it is established that you have violated Delaware’s DUI laws, the arresting police officer will immediately confiscate your driver’s license. You will then be issued a 15-day temporary license, assuming that your license is not revoked or suspended. 

Within 15 days of your arrest, you must request an administrative hearing with the Division of Motor Vehicles by filing a written request or submitting one online. If you fail to do this, you will lose your driving privileges for at least three months. The administrative hearing is conducted to determine the following:

• Probable Cause - Did the police officer have probable cause to believe that you were driving, operating, or in actual physical control of a vehicle while under the influence of alcohol and/or drugs? In simpler terms, were there reasonable grounds for the officer to suspect that you were driving under the influence?

• Preponderance of Evidence - Was there a preponderance of evidence that you were driving, operating, or in actual physical control of a vehicle while under the influence of alcohol and/or drugs? The preponderance of evidence refers to the arresting officer’s ability to prove that DUI was likely in the situation. This is where the BAC limit of 0.08% usually comes into the picture. As previously mentioned, a chemical test showing that your BAC is 0.08 or higher is considered conclusive evidence for DUI charges.

• Chemical Test - Did you decline to undergo the chemical test even after being informed of the penalties for refusal?

In case you fail to request a hearing with the DMV, or the administrative hearing officer hands down a decision that is unfavorable to you, or you have refused to undergo the chemical test, then you will lose your driver’s license and/or driving privileges accordingly:

Delaware DUI Court Procedures

In DUI judicial proceedings, the first step is the arraignment, where you are informed of the charges against you. You are expected to turn in a plea—guilty or not guilty.

Then, you and your lawyer are to meet with the prosecution side. The objective is to reach a settlement in a bid to reduce your charges and related penalties. If both sides fail to come to an agreement, then you will proceed to a criminal trial.

Should the court find you guilty of violating the DUI laws of the state, the penalties would be imposed as follows:

Delaware’s First Offense Election

Should no settlement with the prosecution be reached and before the case goes into trial, a first-time DUI offender has another option. During the arraignment, they may choose to enroll in a First Offense Election - Ignition Interlock Device Diversion program instead of standing trial. FOE applicants, though, should not have the following:

• A previous DUI.

• Three or more offenses committed while a vehicle is in motion (within two years).

• Caused injury to another individual.

• A BAC of 0.15% or higher.

• Had their license suspended or revoked before, or had their license deemed invalid at the time of the arrest.

• Caught transporting an individual aged 17 or below while under the influence.

It is important to remember that if you opt for FOE, this means you are admitting guilt and waiving your right to trial. This also implies that you are withdrawing your hearing request with the DMV, which would then revoke your license and/or driving privileges for one year on top of other penalties. 

Should you be granted admission to the FOE program, you will be required to have an IID for four months from the date of revocation. You can then apply for an IID license upon completing the initial required license revocation period (usually between 30 and 45 days, depending on the BAC level). You should also have proof of valid Delaware vehicle registration and insurance. It is a must that your driver’s license not be suspended, denied, disqualified, or revoked for another violation. Once these requirements are satisfied, the DMW authorities will then allow the IID installation on the approved device.

Delaware Evaluation Process

All DUI offenders in the state are mandated by law to be evaluated by the Delaware Evaluation and Referral Program. This involves a one-on-one meeting that usually takes around 1 ½ hours with an evaluator, who will gather information on your personal, medical, and legal history, among others. You, the DMV, or the court may request the evaluation, although keep in mind that you have only 10 days from the conviction date to get in touch with DERP. If you fail to do so within this period, it will lead to a non-compliance discharge, and you will be imposed additional fees.

Other DUI-Related Rules in Delaware

Delaware Out-of-State Offenders and Violations

A DUI offender arrested in Delaware should comply with the state’s requirements for alcohol evaluation and treatment program completion, even if they are licensed and living in another state. On the other hand, DUI offenders who hold a Delaware driver’s license but were arrested in a different state must get in touch with DERP and schedule an evaluation appointment. Upon completion of the program, DERP will submit the information to the arresting state. In case of an out-of-state conviction, their driver’s license will be revoked.

Zero-Tolerance Law in Delaware

Delaware implements a zero-tolerance law. This means if you are under 21 years old and are caught driving, operating, or in actual physical control of a vehicle while under the influence of alcohol, you will automatically lose your license. If it is your first offense, the license will be revoked for two months. For each subsequent offense, your license will be revoked for not less than six months or more than 12 months. If you do not have a license, you will be fined $200 for the first offense, while the fine for each subsequent offense will not be less than $400 but not more than $1,000.

Delaware’s Stricter Penalties

In 2012, Delaware passed House Bill 168, resulting in the imposition of more stringent DUI penalties. Among these is the mandatory minimum jail time of 60 days for all DUI offenders arrested within 10 years from their first DUI offense, FOE, zero-tolerance charge, or alcohol-related reckless driving charges. Another is that all first-time DUI offenders whose BAC is over 0.15% or who fail or refuse to undergo a chemical test will be required to have an IID installed on all vehicles registered under their name. Moreover, a third DUI offense is considered a felony and is punishable by a minimum of a one-year sentence, with the first 90 days to be served in prison.

Does Delaware Have a Dram Shop Law?

A dram shop is a business where alcoholic beverages are sold. Common examples are bars, taverns, or restaurants. A dram shop law, as the name implies, is a civil liability statute enforced to hold a business establishment responsible for selling or serving alcohol to minors or individuals who are already intoxicated and cause injury to another person in a drunk driving incident. But while most of the states in the country implement dram shop laws, Delaware is not one of them. Similarly, the state does not recognize causes of action against a social host for serving alcohol to their guests.

How Much Can Someone Sue for a Drunk Driving Injury in Delaware?

DUI victims can ask for recovery for economic and non-economic damages. Economic damages, also called special damages, refer to compensation for objectively verifiable monetary losses. A few examples are past, current, and future medical expenses, lost wages, loss of business opportunities, and the costs of repair or replacement of damaged property. Delaware does not cap compensatory economic damages.

On the other hand, non-economic damages or general damages refer to compensation for subjective, non-monetary losses. These include the pain and suffering, emotional distress, and inconvenience that the DUI accident and injury caused the victim and their family. There is also no cap for non-economic damages under Delaware laws, although calculations would often consider the severity of the injury, the potential for other consequences, and the age of the victim. Some lawyers suggest a value using the multiplier method in which they multiply the economic damages by a certain number, usually between one and five. In Delaware, courts usually appoint juries to use their best judgment in determining how much general damages will be awarded to the victim.

In addition to economic and non-economic damages, DUI victims may also receive punitive damages, which are awarded to punish the at-fault party and to deter the wrongdoer and other people from engaging in similar acts in the future. Punitive damages may be awarded when the victim is able to provide a preponderance of evidence that the at-fault party acted recklessly or intentionally. Negligence, such as errors of judgment or mistakes, or even gross negligence may not be enough. Similar to compensatory damages, Delaware does not have a legal cap on punitive damages.

DUI victims and their lawyers, however, should take into consideration that Delaware follows a modified comparative negligence principle. Under the Delaware Code, a victim in a personal injury lawsuit, such as one hit and injured in a DUI incident, has financial recovery options against the at-fault party. However, if the victim was contributorily negligent—meaning, they had partial responsibility for the incident that caused their injuries—then the damages to be awarded will be reduced by a certain percentage corresponding to their share of liability. The rule is further modified as it states that recovery of damages is only possible if the victim’s share of negligence is “not greater than” the at-fault party. This means if the victim was found at fault for the incident by more than 50%, then they are barred from recovering anything.

The Statute of Limitations in Delaware

A Delawarean has two years to ask a state court for a civil remedy for any kind of personal injury case where another person caused them harm. This includes victims of DUI accidents. The two-year period starts from the date of the incident. If a victim’s vehicle or other personal property was damaged following an alcohol-related car crash, the deadline to file a lawsuit is also two years from the incident date. If the victim dies following a vehicular accident, the surviving family is also given two years to file a case against the at-fault party, although the clock will start running from the day the victim died instead of the accident date.

Should victims fail to file a legal action within the specified period, they may be barred from initiating any legal action against the defendant or at-fault party. If they still try to file a lawsuit, the defendant will likely submit a motion to dismiss because the statute of limitations—the deadline—has already passed, which would likely be granted by a Delaware court.

Resources for DUI Defendants and Folks Injured by an Impaired Driver in Delaware

Delaware Legal Help Link

Delaware Legal Help Link is a nonprofit public service that collaborates with other legal organizations to provide free or low-cost legal assistance to residents. It refers clients who are facing civil actions to an appropriate legal service provider. Among its partner groups are the following:

• Community Legal Aid Society - CLASI is a private, nonprofit law firm that offers free civil legal services to Delaware residents who are 60 and above, have disabilities, or have low incomes.

• Delaware Bar Foundation - This organization provides legal services to poor communities. Governed by the Delaware Supreme Court, it also aims to increase citizens’ awareness of their rights and responsibilities.

Delaware Courts Limited Legal Assistance Program

This program offers 15 minutes of free legal assistance to clients. This is not restricted to individuals who have certain income levels; however, it is only available to eligible self-represented litigants. In addition, they must not have been given previous legal assistance on the same issue, and their questions must be answerable within a 15-minute period. This service is available by appointment, which can be made by calling 302-255-0476 or visiting the Information Desk on the first floor of the Leonard L. Williams Justice Center.

Mothers Against Drunk Driving Delaware

MADD is a nonprofit, grassroots organization that maintains a presence in all 50 states in the country. It helps victims and survivors of alcohol-related accidents by guiding and providing information on criminal and civil justice processes. It also connects them to organizations that can provide financial resources and emotional support options. Its staff consists of volunteers with a shared experience of how drunk driving changed their lives, either as victims or the family or loved ones of a victim. You can get in touch with MADD Delaware by calling 804-201-4604 or sending an e-mail to de.state@add.org. You may also call the national line at 1-877-523-3435, which is manned 24 hours a day.