I was recently asked whether it’s illegal to drink while driving home from work. Here’s what’s going on: My client, let’s call him John, told me that he likes to drink a few beers at the end of the day. But instead of waiting to get home, he often stops at a liquor store on his way home and picks up an ice-cold six pack. Sometimes, he also adds a little bottle of his favorite whiskey to the mix. On the ride home, which only takes about ten minutes, John downs the whiskey and then gets started on a beer. Here’s the question: If his blood alcohol content (BAC) is not over the legal limit of 0.08 while he’s behind the wheel, in other words if he’s not driving drunk or impaired, is it otherwise legal?
This is absolutely NOT legal, and here’s why:
In Delaware, we have a statute at 21 Delaware Code, Section 4177J, which makes it illegal to drink alcoholic beverages while operating a motor vehicle.
4177J – Drinking while driving prohibited.
(a) No person shall consume an alcoholic beverage while driving a motor vehicle upon the highways of this State. “Consume,” as used in this subsection, shall mean the ingestion of a substance containing alcohol while in the act of operating a motor vehicle in the presence of, or in the view of, a police officer.
(b) Whoever violates this section shall be fined for the first offense not less than $25 nor more than $200. For each subsequent like offense occurring within 1 year of the previous offense, the person shall be fined not less than $50 nor more than $400.
Is it illegal to drink whiskey or beer on your way home from work?
Don’t let the small fine fool you. The fine for a first offense is between $25 and $200. But drinking while driving a car is a great way to give police a reason to stop, detain, question, and search you and your vehicle. Breaking a small law is an invitation for investigation. God only knows what the police will find when they search your vehicle. Remember last week when you loaned your car to your nephew? What if he put some marijuana in the glove box and forgot it was there? You’re taking the charge now!
Also, what if you weren’t drunk when you were driving but because of the passage of time, you are well over the limit by the time they test you? If you drink whiskey and a can of beer, you won’t feel the effects of the alcohol immediately. The time it takes for the police to stop you and to then begin an investigation may be the same amount of time it takes for the alcohol to kick in. That’s a big problem because Delaware’s DUI statute doesn’t say you can only be convicted if you were driving while intoxicated. It actually says if you have a BAC over the legal limit within four hours after driving, you can be charged and convicted of DUI. The Delaware DUI law as set forth in 21 Delaware Code, Section 4177(a)(5) says:
No person shall drive a vehicle . . .When the person’s alcohol concentration is, within 4 hours after the time of driving .08 or more. Notwithstanding any other provision of the law to the contrary, a person is guilty under this subsection, without regard to the person’s alcohol concentration at the time of driving, if the person’s alcohol concentration is, within 4 hours after the 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 that person was driving.
So if you do drink alcohol while you’re driving, you can definitely be charged for that. And even though you’re not actually drunk or impaired while you’re driving, such actions on your part give the police the justification they need to investigate you for DUI. And, by they time they complete their investigation and give you a breath or blood test, your BAC could be well over the limit and you could still be convicted of DUI in Delaware. Moral of the story — Wait till you get home to drink, and once home, stay home!
Is it illegal to drink whiskey or beer on your way home from work?
Please take a moment to read my “Side of the Road DUI Guide”
JAMES M. STILLER, JR. (Matt)
Associate Attorney
Schwartz & Schwartz, Attorneys at Law
1140 South State Street
Dover, DE 19903
Email: Matt.Stiller@schwartzandschwartz.com
Work: (302) 678-8700
Fax: (302) 678-8702
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