In Delaware, a person is guilty of DUI if he or she: (1) operates a vehicle while under the influence of any drug; or (2) has, within 4 hours of operating a vehicle, any amount of an illicit or recreational drug in his or her blood that is the result of unlawful use prior to or during driving. Del. Code Ann. tit. 21, § 4177(b)(4) (2010).
(1) Driving under the influence of drugs. Id. § 4177(a)(2).
A person can obtain this type of DUI if drugs interfere with person’s mental or physical capacity, ability to exercise clear judgment, or due care in the driving of a vehicle. Id. § 4177(c)(5).
The fact that any person charged with violating this section is, or has been, legally entitled to use a drug shall not constitute a defense. Id. § 4177(b)(1).
(2) Blood contains any amount of an illicit or recreational drug. Id. § 4177(a)(6).
Any cannabis metabolite, within 4 hours of driving, that is the result of the unlawful use or consumption of marijuana prior to or during driving. However, no person shall be guilty when the person has not used a recreational drug prior to or during driving but has only used or consumed such drug after the person has ceased driving and only such use or consumption after driving caused the person’s blood to contain an amount of the drug or an amount of a substance or compound that is the result of the use or consumption of the drug within 4 hours after the time of driving. Id. § 4177(b)(3)(a).
NOTE: Actual impairment is not an element of this offense. Cannabis metabolites can be detected in a person’s body up to one month after use, thus it is possible to be convicted of this type of DUI weeks after a person last ingested cannabis.
No person may be guilty this second type of DUI when the person has used or consumed the drug detected according to the directions and terms of a lawfully obtained prescription for the drug. Id. §4177(B)(3)(b).
NOTE: a physician’s recommendation is not a prescription.
- Any person who drives shall be deemed to have given consent to a chemical test or tests of that person’s blood, breath and/or urine for the purpose of determining the presence of alcohol or a drug or drugs. Id. § 2740(a). The testing may be required of a person when an officer has probable cause to believe the person was driving under the influence of alcohol or drugs. Id.
- At the time a chemical test specimen is required, the person may be informed that if testing is refused, the person’s driver’s license and/or driving privilege shall be (1) revoked for a period of at least 1 year if a DUI is alleged. Id. § 2741(a). The police officer who shall designate which of the tests shall be administered. Id.
- If a person refuses to permit chemical testing, after being informed of the penalty of revocation for such refusal, the test shall not be given but the police officer may, however, take reasonable steps to conduct such chemical testing even without the consent of the person if the officer seeks to conduct such test or tests without informing the person of the penalty of revocation for such refusal and thereby invoking the implied consent law. Id. § 2742(a)
- If there are reasonable grounds to believe that there is impairment by a drug or drugs which are not readily subject to detection by a breath test, a blood and/or urine test may be required even after a breath test has been administered. Id. § 2741(b).
- Evidence as to defendant’s refusal to take sobriety tests is admissible in prosecution for operating motor vehicle DUI. State v. Durrant, 55 Del. 510 (1963); Del. Code Ann. tit. 21, § 2749.
- First offense – prison sentence of between sixty (60) days and three (3) months; fine of between $250 and $1,500 + surcharges; driver’s license revoked for twelve (12) months.Del. Code Ann. tit. 21, § 4177(d)(1);Id. § 4177A(a)(1).
- Second offense – prison sentence of between sixty (60) days and three (3) months, fine of between $575 and $2,300 + surcharges; driver’s license revoked for twenty-four (24) months. Id. § 4177(d)(2); Id. § 4177A(a)(2).
- Fourth offense class E felony – fine of not less than $3,000 nor more than $7,000; imprisonment for not less than 2 years nor more than 5 years; driver’s license revoked for sixty (60) months. Id. § 4177(d)(4);Id. § 4177A(a)(4).
- Fifth offense class E felony – fine of not less than $3,500 nor more than $10,000; imprisonment for not less than 3 years nor more than 5 years; driver’s license revoked for sixty (60) months. Id. § 4177(d)(5);Id. § 4177A(a)(4).
- Sixth offense class D felony – fine of not less than $5,000 nor more than $10,000 and imprisoned not less than 5 years nor more than 8 years; driver’s license revoked for sixty (60) months. Id. § 4177(d)(6); Id. § 4177A(a)(4).
- Seventh offense class C felony – fine of not less than $10,000 nor more than $15,000; imprisonment for not less than 10 years nor greater than 15 years; driver’s license revoked for sixty (60) months. Id. § 4177(d)(7); Id. § 4177A(a)(4).
Other Penalties & Penalty Enhancers
- DUI with a child under 17 in the vehicle: be fined an additional minimum of $500 and not more than an additional $1,500 and sentenced to perform a minimum of 40 hours of community service in a program that benefits children. Id. §4177 (d)(10)(a).
- DUI before age 17 carries a minimum $500 fine, and 40 hours of community service in addition to normal penalties for DUI. Id. § 4177(d)(10).
Delaware’s interpretation of both federal and state Constitutions allows law enforcement officials to conduct sobriety checkpoints.
- Howard v. Voshell, 621 A.2d 804 (1992) — Stopping of vehicle at sobriety roadblock is not per se Fourth Amendment violation; Lawful turns in order to avoid a sobriety checkpoint do not give law enforcement officials reasonable suspicion needed to justify stop of vehicle.
State v. Hollobaugh, 297 A.2d 395 (1972) — Statute forbidding driving of a vehicle upon highways and elsewhere has been interpreted to mean that a person can be convicted of DUI on private property.
State v. Pritchett, 173 A.2d 886 (1961) – A motorist can be convicted by circumstantial evidence alone.
Per Se Drugged Driving Laws
Delaware has a zero tolerance per se drugged driving law enacted for cannabis, cannabis metabolites, and other controlled substances. (21 Del. C., Section 4177)
Under Delaware law, a person is per se guilty of DUID if their blood, “within four hours of driving, [contains] any amount of an illicit or recreational drug that is the result of the unlawful use or consumption of such illicit recreational drug, or any amount of a substance or compound that is the result of the unlawful use or consumption of an illicit or recreational drug prior to or during driving.”