Do You Go to Jail for a DUI?

It’s the most frightening question on your mind—is a DUI charge going to send you to jail? In Delaware, the answer is complicated. The good news is that, unless your arrest happened on the weekend, you may be able to go home without a long wait or even posting bail. The bad news is that incarceration is still on the table.

A DUI attorney may be able to help you avoid this or minimize the time you have to serve. It all depends on your record and the circumstances of your arrest.

Jail, Prison, and Delaware DUI Charges

Once you have been arrested for a DUI in Delaware, you will face two different sets of proceedings. One is for the administrative consequences—that is, the suspension of your driver’s license—and the other is for the criminal charges and penalties.

The next step after arrest is arraignment: the hearing where charges are formally filed. At that point, the defendant must enter a plea of guilty, not guilty, or no contest. There is no need to go it alone here! You can have an attorney at your arraignment. Arraignments should occur within 24 hours, except on weekends.

Imprisonment for DUIs in Delaware

Delaware is strict about DUI offenses. For adult offenders, any one of them carries the possibility of imprisonment, as well as considerable fines.

The law sets out the following imprisonment guidelines for offenders over the age of 21:

  • First offense: possible imprisonment of no more than 12 months; this sentence may be suspended
  • Second offense within 10 years of the first: no less than 60 days and no more than 18 months. The court may only suspend the sentence if the offender completes a Court of Common Pleas DUI Treatment Program
  • Third offense (class G felony): a prison sentence of between one and two years, with no suspension possible for the first three months
  • Fourth offense (class E felony): between two and five years, with no suspension possible for the first six months
  • Fifth offense (class E felony): between three and five years
  • Sixth offense (class D felony): between four and eight years
  • Seventh offense or more (class C felony): between five and fifteen years

For the fifth and subsequent offenses, the offender must serve at least half of the minimum prison sentence, and it is not “subject to any early release, furlough or reduction of any kind.” See 21 Del. C. § 4177(d)(8).

What Are Your Options?

It is crucial to speak to a Delaware DUI attorney as soon as you can make a call. Your attorney’s first job will be to prevent anything from getting worse as much as they possibly can. They will try to help you avoid imprisonment or, if that is not possible, to reduce your sentence as much as they can. A first or second DUI offender has the best chance of avoiding time. But if the arresting officer did not follow the law, it may be possible to get a DUI charge thrown out.

Do the Charges Hold Up?

Your attorney will review your situation for any violation of your rights. Outside of a roadblock, the police cannot simply stop drivers to look for DUIs. They need probable cause—some indication of impaired driving; the appearance or smell of intoxication. If your arrest was unconstitutional, the evidence may not be admissible in court.

Breathalyzers, especially field breathalyzers, can make mistakes. Officers may not calibrate or use them correctly. Some legal substances, including foods and medications, can create false readings. Even certain medical conditions, like diabetes, can interfere with a breathalyzer. If this evidence does not hold up, what else do they have? Unless they can also show your driving was impaired, there’s not much left.

Prosecutors do not want to waste their time with charges that will not stand up. Your attorney may be able to persuade them to dismiss the DUI charge. If not, however, they can still help you come to the most manageable solution.

Probation and Suspended Sentences

If you qualify for Delaware’s First Offenders Program (FOP), you will receive probation on the condition that you complete a drug and alcohol evaluation and the subsequent classes or treatment referred. Not every first offender will qualify, as it requires a relatively clean driving record, as well as a BAC under .15%. Furthermore, it means waiving the right to a trial.

Nonetheless, first and second offenders may still be eligible for suspended sentences if they complete the DUI Treatment Court Program. This program involves maintaining sobriety, regular drug/alcohol testing, law-abiding behavior, and completing 240 hours of community service.

If you or someone you love has been involved in a DUI, Attorney Matt Stiller wants to talk. Contact us at (302) 678-8700 to schedule a free case review in our Dover or Wilmington offices, and let us see what we can do for you.