What is Implied Consent in Delaware?

All motorists must adhere to certain expectations in Delaware and other states when operating motor vehicles. When you apply for a Delaware driver’s license, you agree to implied consent laws.

Delaware’s implied consent laws include the following:

  • Always carry a valid driver’s license, current registration, and proof of insurance when driving a motor vehicle,
  • Perform field sobriety tests when requested to do so by law enforcement, and
  • Consent to blood, breath, or urine tests when requested to determine blood alcohol content (BAC).

Under the Delaware’s implied consent law, you have already consented to taking a chemical test; breath or blood, in order to determine your BAC. Refusing to take a breath or blood test after an arrest violates Delaware’s implied consent law and can result in harsher penalties such as more lengthy driver’s license suspensions.

What Are Delaware’s Legal Alcohol Limits?

Different legal blood alcohol concentration limits apply to different categories of motorists in Delaware. For drivers aged 21 and older, the BAC legal limit is 0.08%. If your blood alcohol content is 0.08% or higher within four hours of your being in control of a motor vehicle, you can be charged with driving under the influence of alcohol. Drivers under the age of 21 have a legal limit of 0.02%. Commercial drivers, such as the drivers of buses, delivery vans, and semi-trucks, are held to a higher standard than other drivers over age 21, and their legal limit is 0.04%.

In some instances, you may be charged with a DUI even if you have consumed less than the legal limit, if evidence suggests that you are clearly under the influence of drugs or alcohol. Evidence that can be used to support a DUI charge may include an admission of being impaired or of consuming alcohol or drugs, peculiar behavior, slurred speech, erratic driving, motor vehicle accidents or violations, and failing field sobriety tests.

The DUI arrest process usually begins with a routine traffic stop where a police officer pulls over a driver they suspect is under the influence of alcohol or drugs. The officer will typically then request the driver’s license, registration, and proof of insurance. The officer may then request that the driver perform specific field sobriety tests to gauge their level of impairment. If the police officer believes the motorist is intoxicated, they may then administer a breathalyzer or blood test to determine BAC levels. If the BAC levels exceed the legal limit, the motorist will be arrested and booked at the local police station.

Can You Refuse to Take Breathalyzer Tests in Delaware?

Yes, however, refusing to take a breath test may result in a lengthier period of driver’s license suspension or driving privilege revocation through the Division of Motor Vehicles. This is meant to persuade motorists to comply with police requests.

If you refuse to provide a sample for any chemical test, you risk losing your driver’s license for at least one year. Subsequent infractions could result in driver’s license suspensions lasting even longer.

As a Delaware motorist, you should always be respectful to law enforcement officers; however, you must remember that when you are stopped by law enforcement, they are most likely trying to build a case against you. That said, you are well within your rights to respectfully decline to take any field sobriety tests or chemical tests, even if it results in your being placed under arrest for suspicion of drunk driving. If law enforcement acquires a blood draw search warrant, you will then be required to submit to a blood draw, regardless of your having earlier refused. There are still legal defense strategies for BAC evidence that can be used as a defense. 

What Happens if You Refuse to Take a Breathalyzer Test?

According to the National Highway Traffic Safety Administration, approximately 20% of all drunk driving suspects in the United States refuse to take breathalyzers or other blood alcohol content tests when officers believe that they are under the influence. The implied consent law in Delaware requires that motorists consent to field sobriety tests and chemical tests carried out by police legally. However, a motorist still enjoys a constitutional right to refuse to take those tests. 

In addition to seeing your driver’s license suspended for more than 90 days, refusal to take a breathalyzer test can be used as evidence against you in a court. It will be seen as “consciousness of guilt” or an “indicator of impairment.” 

There is a key distinction that applies to implied consent laws in Delaware, and that has to do with the timing of the tests. Police can request breathalyzer tests at a traffic stop at the scene or after placing you under arrest. When in the field, the breathalyzer devices used are known to be inaccurate. You have the legal authority to refuse to blow into a portable breathalyzer device at a traffic stop without triggering implied consent statutes of our state. However, as stated above, it will be seen as “consciousness of guilt” or an “indicator of impairment.”

Those formally charged or arrested for a DUI must comply with requests for breathalyzer tests. If you decline to provide your breath, blood, or urine after an arresting officer makes a request, you will have violated the statute and may face penalties.

Are There Legal Strategies for Those Who Refuse Breath Tests?

There are two central questions to every DUI case that involves a breathalyzer defense. First, did the police use proper legal procedures when administering sobriety tests? And second, did the police officer have probable cause to administer these sobriety and breathalyzer tests?

Refusal to take a field sobriety or breathalyzer test complicates every DUI case, but that doesn’t mean you are without hope. An experienced attorney will examine the facts of your case to determine possible legal strategies.

Our law firm is one of the top law firms for those accused of DUI offenses in Delaware. To learn more about our legal services and how we may assist you through this challenging situation, please contact our Dover-based law office to schedule your initial consultation today.

Can You Challenge Field Sobriety Test Results?

Field sobriety tests results can be challenged based upon how the police officers administer them. Generally, they are required to follow written procedures when administering the various tests. The breath tests, if taken, can also be challenged based upon whether or not standard operating procedures were followed. 

Potential legal defenses may include the following:

  • Criticize the calibration and maintenance of the breathalyzer device
  • Demonstrate that another substance caused the test results
  • Establish that the police officer failed to follow proper protocols
  • Presenting evidence of health conditions such as diabetes or acid reflux, which can affect the results of a breath test
  • Prove inadequate training for the use of the breathalyzer device
  • Question probable cause
  • Seek the testimony of forensic toxicologists and medical professionals
  • Show issues in the chain of custody and evidence processing

Schedule a No-Obligation Case Evaluation with an Experienced DUI Defense Attorney Today

If you are facing DUI charges in Delaware, you need the experienced legal representation of a DUI defense lawyer. Our law firm is solely dedicated to helping clients charged with DUI offenses across the state of Delaware. Our extensive experience in this practice area makes us a uniquely qualified criminal defense team capable of tackling complex legal issues.

Contact our Dover law firm to schedule your in-depth case review with our legal team today.

You can reach us at 302-678-8700.