After getting a new DUI case, we often wish we could have spoken to our client before the arrest occurred. If we had, maybe we would have prevented the arrest from even occurring, or maybe we could have given some useful tips that would have helped in the defense of the case.
We hope you never get arrested on a DUI in the State of Delaware. But if you do, we hope the following information helps. Even if you remember one – just one – of these Commandments, you will be better off than you might have been! So what are the Ten Commandments of Delaware DUI Law?
1) Don't drive impaired. It’s just not a good idea. Call a cab. Call a friend. Call your mama. But for Pete’s sake, if there’s a chance that you are impaired at all, do not get into the driver’s seat. Assuming this fails, continue reading…
2) Don't give police a reason to stop you. The police cannot just pull you over and see if you’re drunk, unless it is at a checkpoint. They must have a reason to stop you in the first place. Tinted windows, rolling through stop signs, weaving on the roadway and speeding are some things that can legally get you stopped. Be aware of what can get you stopped and avoid those things.
3) Have no visible alcohol containers. Once stopped, the police should not be able to see empty beer cans on the floorboards of your back seat. If they do, you will have given the police a lot of ammunition in your DUI trial. Just so you are aware, the police call that "evidence".
4) Get your license, registration and insurance out before police officer gets to your window, and place them on the dash. One of the things that police use as an excuse to pull you out of the vehicle and do further “field sobriety tests” is fumbling around for documents. They always ask for the same three documents, so have them ready. Further, pay attention to which documents the officer requests. He may not ask for all three. He may ask for only two of the three. Make sure you give him or her the right ones.
5) Don't admit to drinking. When they ask you, “Have you had anything to drink?,” you don’t have to admit that you did. Admitting that you only had one glass of wine or that you only had two beers is admitting drinking and driving. Why would you do that? We don’t recommend lying to the police officer, so don’t lie and say you didn’t have any alcoholic beverages if you know you did. But we live in the United States of America. People have died in wars to protect your freedom. One of those freedoms is the right to remain silent. We suggest you exercise your right to remain silent and just don’t answer questions like “Have you had anything to drink?” Just say, “Respectfully, officer, I would like my attorney to be present before you start asking me any questions.”
6) Don't consent to a search of your vehicle. In the U.S. of A., the police don’t automatically get to search through your vehicle looking for evidence, unless of course you give up your rights by consenting to a search. A real good way to turn a misdemeanor DUI case into a felony drug or weapons case is to consent to the search of your vehicle. If they are going to impound the vehicle and search it, or get a drug dog, or get a warrant, or whatever it is that they threaten, then tell them to go ahead and do it. There may not be a dog available. There may not be a judge who will grant their warrant application. Things may not work out as smoothly as the officer seems to think when he tells you what he is going to do if you don’t consent to a search. Tell him you respectfully refuse to consent to any searches, having reading this article.
7) Decide ahead of time if you will participate in field sobriety tests / breath testing. Once you are pulled over, the officer will probably ask you to do “field sobriety tests” on the side of the road, such as the horizontal gaze nystagmus or HGN test. This involves watching your eyes as you look from one side to the other. Another test is the one-legged stand. Another is the nine-step walk and turn. Another test is the handheld breathalyzer. The point of all these tests is to develop an air-tight case of probable cause to take you back to the police station and administer the Intoxilyzer. The Intoxilyzer is the machine they use to officially test your breath. The Intoxilyzer test result is used as evidence in your DUI trial.
BAD THINGS ABOUT REFUSING THE TESTS: If you refuse these tests, the police officer can take you to the hospital and force you to undergo a blood test to determine if your BAC is over the limit. The blood test is more accurate than the Intoxilyzer. So if you are over the limit, the blood test will be stronger evidence at trial than the Intoxilyzer. Also, if you refuse these tests, your license can be suspended for one year.
GOOD THINGS ABOUT REFUSING THE TESTS: In our experience, sometimes they don’t take people for a blood draw. It’s a lot more trouble. With no blood and no breath, there’s really not much evidence to support the State’s criminal case (you’re probably still going to lose your license through DMV). If they do take you for a blood draw, the evidence becomes more complicated for the prosecutor because she may have to bring in the people who drew your blood to testify and they have more important things to do… such as treating patients. Also, the field sobriety tests are set up for you to fail. The officer determines in his own subjective opinion whether you pass or fail. Why would you take a test you are destined to fail?
8) Note conditions such as road tilt and wind blowing. If you retain us to handle your DUI case, we will need a full report from you on things such as the tilt of the road – how can you “walk the line” if the road is tilting at a 45 degree angle? And the breeze – how could the officer have claimed to smell alcohol on your breath when there was a twelve knot breeze blowing northwest? We will need you to remember as much of the details of the interaction as possible so pay attention!
9) Be mindful of the 20-minute observation period. Before administering the Intoxilyzer breath test, the officer is required to observe you for twenty minutes to make sure there is no regurgitation. If you have alcohol in your stomach and regurgitate it, then the alcohol content in your breach may be artificially high. In our experience, this 20-minute observation period occasionally starts at the side of the road and ends in the police station. How could the officer have been observing you in the back seat when he was driving? Also, in our experience, sometimes the police officer comes and goes from the room during the twenty minute observation period. You should be noting when the officer comes and goes, and when he is observing you so that you can help us determine whether there was truly 20 minutes of observation prior to administration of the Intoxilyzer test.
10) Immediately request a DMV hearing. If arrested for DUI in Delaware, you will receive from the arresting officer a temporary license. This license will automatically expire unless you immediately request a hearing from the DMV. You can contact the DMV revocation section and ask for a hearing. If you retain an attorney from our firm, we will attend your DMV hearing with you and try to help you keep your license.
There you have them – the Ten Commandments of Delaware DUI Law. Hopefully you will never have a DUI, but if you do you will be well informed if you know these Ten Commandments.
The following trial lawyers assisted Matt Stiller in the creation of this blog post: Zachary A. George, Esq., Robert C. Collins, II, Esq. and Benjamin A. Schwartz, Esq. James M. “Matt” Stiller, Jr., Esq. is the Delaware DUI Defender. He defends DUI cases in all Delaware Courts including the Superior Court and Court of Common Pleas in Wilmington, Dover and Georgetown. He also handles DUI and traffic cases in the Justice of the Peace (JP) Courts in Frankford (Court 1), Rehoboth (Court 2), Georgetown (Court 3), Seaford (Court 4), Harrington (Court 6), Dover (Court 7), Smyrna (Court 8), Middletown (Court 9), Price’s Corner (Court 10), New Castle (Court 11), Georgetown (Court 14) and Wilmington (Court 20).