Delaware DUI Elements

In Delaware, it is illegal to drive your vehicle with a blood alcohol concentration (BAC) of .08% or higher within 4 hours of driving. The legal threshold in Delaware is .08%. It does not matter what your BAC was at the time of driving. As long as the police obtain a chemical test within 4 hours of driving the vehicle and your BAC is over .08%, this is a violation of Delaware law. In order to prove that the chemical test was taken within 4 hours, the police must establish the time of driving. This can be problematic for police in situations where they don’t see you driving such as when an accident occurs with no eyewitnesses and the police arrive after the fact.

If the police are unable to obtain a breath or blood sample for whatever reason, the second way for the cops to prosecute you for a DUI in Delaware is under an impairment theory. These are also known as “non-test” cases. Delaware law says that it is illegal to drive your vehicle under the influence of alcohol. This means the State must show that you were less able to drive your vehicle than you ordinarily would have been because of the alcohol. The police officer will try to show that your physical and mental capabilities were impaired through field sobriety tests and other factors such as odor of alcohol, bloodshot eyes, and erratic driving.

The third type of DUI case you can be prosecuted for is driving under the influence of drugs. In Delaware it is illegal to drive under the influence of any drug. “Drug” is defined in Delaware as any schedule I, II or III controlled substance. You can be prosecuted even if you are taking a lawful prescription so long as you are “under the influence.” You can also be prosecuted under Delaware law taking illegal drugs even if you are NOT impaired. For example, if your blood contains any amount of an “illicit or recreational drug” within 4 hours of driving. Examples of recreational drugs are cocaine, amphetamines, marijuana or any schedule I controlled substance.

The fourth way you can be prosecuted for a DUI is if you are under the influence of a combination of alcohol and drugs.

Driving Doesn’t Actually Mean Driving

In Delaware you don’t have to actually drive a vehicle to be convicted of a DUI. You can be “operating” or have “actual physical control” of the vehicle and still be convicted. The Delaware Supreme Court defined actual physical control in the case of Bodner v. State. The Court expanded the definition to include the present ability to operate the vehicle. This means that you could just be sitting in a vehicle that is not running and theoretically still be convicted. The Delaware DUI statute can be found in its entirety at 21 Del.C. §4177.

Contact Us

Call my office if you are facing a DUI in the State of Delaware. We offer free consultations on all DUI cases. Our office is conveniently located on Kirkwood highway directly across from the VA hospital. Call us at 302-482-4802.