Delaware considers driving under the influence (DUI) to involve driving with a blood alcohol concentration (BAC) of 0.08 percent or above. In other states this may be called driving while intoxicated or DWI. Penalties for a Delaware DUI conviction typically include jail time, fines, driver’s license revocation, drug or alcohol evaluation, and treatment for substance abuse. If the individual wants to legally drive following the incident, they will be required to install an ignition interlock device (IID). For an individual under 21, a DUI is defined as driving with a BAC of 0.02 percent or above.
Penalties for a First Delaware DUI
A driver convicted for a first Delaware DUI faces a maximum period of incarceration of one year, a fine between $500 and $1,500, and a driver’s license suspension of one year, according to Delaware Code Title 21, Chapter 41. For a first offense, any period of incarceration may be suspended. The period of driver’s license revocation is determined by the driver’s BAC level.
A driver with a BAC under 0.15 percent will have their driver’s license revoked for one year; a driver with a BAC between 0.15 and 0.19 percent will have their driver’s license revoked for 18 months; and a driver with a BAC of 0.20 percent or above will have their driver’s license revoked for two years.
Penalties for a Second Delaware DUI
A driver convicted of a second Delaware DUI within 10 years of a prior offense faces a period of incarceration of between 60 days and 18 months, a fine between $750 and $2,500, and a driver’s license revocation of 18 months. A sentencing court may suspend the minimum sentence upon the condition that the individual successfully complete the Court of Common Pleas’ DUI Treatment Program Court. This program requires the driver to do a minimum of 30 days of community service. For a second offense, the minimum sentence may not be suspended.
The 18-month driver’s license revocation applies if the driver’s BAC was below 0.15 percent. A driver with a BAC between 0.15 and 0.19 percent will suffer a driver’s license revocation for two years, and a driver with a BAC of 0.20 percent or above will suffer a driver’s license revocation for 30 months.
Penalties for a Third Delaware DUI
A driver convicted of a third Delaware DUI occurring any time after two prior offenses faces a period of incarceration between one year and two years, a maximum fine of $5,000 and a driver’s license revocation of two years. The individual’s driver’s license will be revoked for two years if their BAC was under 0.15 percent; 30 months if the BAC was between 0.15 and 0.19 percent; and three years if the individual’s BAC was 0.20 percent or higher.
A third offense is considered a Class G felony. A Class G felony is Delaware’s least serious type of felony, according to Delaware Code Title 11, Chapter 42. For a third offense, the first three months of the sentence shall not be suspended. The individual shall not be subject to early release, furlough or reduction of any kind.
The sentencing court may suspend up to nine months of any minimum sentence if the portion of the sentence suspended includes participation in a drug and alcohol abstinence program and a drug and alcohol treatment program.
Additional Penalties for DUI Offenders in Delaware
An offender who wants to drive again is required to install an ignition interlock device (IID) on their vehicle, according to the Delaware DMV Drivers Licenses and Identification Cards. The period for which the IID must be installed corresponds to the term of revocation for the individual’s driver’s license. A first offender with a BAC below 0.15 percent must wait 30 days to apply for an IID license, and the individual must wait 45 days if their BAC was 0.15 percent or above.
If the individual was a second offender, they must wait at least 60 days to apply for an IID license. If the individual was a third offender, they must wait at least 90 days. There are fees to apply for the IID program and fees to continue to operate the IID.
An individual convicted of a DUI is required to complete an evaluation with the Delaware Evaluation and Referral Program (DERP) before receiving a license reinstatement. Further, they must complete an education or rehabilitation program as recommended. It is also an option for the individual to engage in a recommended mental health treatment program, which involves random urine screens. There are fees for the evaluation and treatment programs.
Underage Delaware DUI
A driver convicted of an underage DUI in the state of Delaware faces a driver’s license revocation of two months for the first offense. An underage person who lacks a driver’s license and/or driving privileges will also be fined $200 for a first offense. An underage person will face a driver’s license revocation of between six months and one year for a second or subsequent offense.
An underage person who lacks a driver’s license and/or privileges will be fined between $400 and $1,000 for a second or subsequent offense. The individual will also be required to complete a drug and alcohol evaluation and a program of substance abuse education or rehabilitation.
Delaware’s DUI Look-back Period
Delaware’s look-back rule is complicated because the state differentiates how it counts time for a second DUI and any subsequent DUIs. Delaware counts a second DUI as an offense committed within 10 years of a first DUI. The state counts a third DUI as a third offense occurring at any time after two prior DUIs. Similarly, Delaware counts a fourth DUI as a fourth offense occurring any time after three prior offenses.
Refusal of Chemical Test
Delaware’s implied consent rule requires all drivers on the state's roads to agree to a chemical test to determine the degree of impairment, according to Delaware Division of Motor Vehicles (DMV) Frequently Asked Questions (FAQ). When an individual refuses to take a chemical test for blood alcohol concentration, the period of their driver’s license revocation increases. An individual who refuses to take a chemical test for a first DUI faces driver’s license revocation of one year; for a second DUI they face a driver’s license revocation of 18 months; and an individual who refuses to take a chemical test for a third DUI faces a driver’s license revocation of two years.
First Offense Election Program
Certain individuals charged with a first DUI may be eligible for the state's First Offense Election program, according to Delaware DMV Driver Improvement. The program allows the individual to drive again within one month after the loss of their license. In order to qualify for this program, the offense must be the individual’s first DUI, and the individual must complete an alcohol evaluation, enroll in a designated treatment program and have agreed to take the chemical test when they were arrested.
When a person elects to apply for the program, they admit guilt and waive their right to a speedy trial. They also agree not to request an administrative hearing at the DMV. An individual is not eligible for the program if their BAC was 0.15 percent or above, they caused injury to another person or they were transporting a child under 17 years on or within a vehicle while the driver was under the influence of alcohol or drugs.
Getting an Occupational Driver's License
An occupational license is a driver's license that allows the holder to drive to work, school and treatment centers. The Delaware DMV will not issue an occupational license during the first month of a driver’s license revocation period.
The Delaware DMV will also not issue an occupational license if the driver has had two previous driver’s license revocations within the previous three years. An individual is not eligible to apply for an occupational license if they have been issued an occupational license in the previous year.
Habitual Offender Driver’s License Revocation
An individual who has accumulated a number of certain types of traffic violation convictions, including drunk driving, may be declared a habitual offender. Their driver’s license may be revoked for up to five years. An individual is not eligible for a work or hardship license if they are convicted of being a habitual traffic offender.
A combination of three offenses of certain types within a five-year period may convict an individual as a habitual offender. The offenses include DUI, driving during suspension or revocation, reckless driving, and violation of an occupational license. A combination of these offenses and lesser offenses, like speeding, that result in 10 convictions in three years may also convict an individual as a habitual offender.
DUI Treatment Program Court
Delaware has a separate DUI court that is available in the Court of Common Pleas. This is the level of court that has jurisdiction over misdemeanors and motor vehicle offenses. In order to enter the DUI Treatment Program, the individual must have committed a first DUI with a high BAC level, or a second offense. The DUI must not have resulted in severe bodily injury or death. The individual must also plead guilty to the offense, according to DUI Treatment Program Court.
An offender with a DUI arrest in another state must contact the Delaware Evaluation and Referral Program (DERP), according to the Delaware DMV. The individual must undergo an evaluation. After the evaluation is complete, the DMV will request the paperwork from the state regarding the arrest.
After the offender has completed a treatment program, DERP will forward the information to the arresting state. An offender who is convicted in another state and holds a Delaware driver’s license will have their driver’s license revoked.
Whether a conviction for an out-of-state DUI offense will count as a prior DUI in Delaware depends on whether the law regarding the defendant’s actions was substantially similar to Delaware’s corresponding DUI law. Delaware’s DUI law is relatively strict. It states that “drive” includes driving, operating or having actual physical control of a vehicle.
Aggressive or Reckless Driving Charges
In certain cases, an individual may be eligible to see a DUI charge reduced to aggressive or reckless driving. The reckless driving penalties for a first time offender include incarceration between 10 and 30 days, and a fine between $100 and $300. The penalties for a first offense of aggressive driving also include incarceration between 10 and 30 days and a fine between $100 and $300.
A person who violates Delaware’s laws regarding reckless driving will not receive a suspended sentence, yet for a first offense of reckless driving, the period of incarceration may be suspended. An individual who has had a charge reduced from a DUI to reckless driving is required to complete an educational course or rehabilitation program regarding substance abuse. Further, the court shall note in its record that the offense was alcohol- or drug-related. The notation shall be carried on the individual’s motor vehicle record.
- Delaware Division of Motor Vehicles: Driver Improvement
- Delaware Division of Motor Vehicles: Frequently Asked Questions
- Delaware Code Online: Chapter 41 Rules of the Road, Subchapter 9: Reckless Driving; Driving While Intoxicated
- Delaware Code Online: Chapter 42, Classification of Offenses, Sentences
- Delaware Division of Motor Vehicles: Drivers License/Identification Cards
- Delaware Courts, Court of Common Pleas: DUI Treatment Court Program
Jessica Zimmer is a journalist and attorney based in northern California. She has practiced in a wide variety of fields, including criminal defense, property law, immigration, employment law, and family law.