A Complete Guide to Delaware DUI Laws: From First Offense to Felony Charges

June 20, 2025

A Complete Guide to Delaware DUI Laws: From First Offense to Felony Charges

Introduction

Delaware, the "First State," has robust Driving Under the Influence (DUI) laws aimed at deterring impaired driving and ensuring public safety on its roadways. Known for its progressive stance on various legal matters, Delaware imposes significant penalties that escalate dramatically with each subsequent offense, often involving mandatory jail time and extensive license revocations. Understanding these regulations is crucial for anyone driving in the First State.

The General Framework of Delaware DUI Laws

In Delaware, a person can be charged with DUI if they are found to be driving, operating, or in actual physical control of a vehicle while under the influence of alcohol, any drug (prescription or illicit), or a combination of both, to a degree that renders them incapable of safely driving.

Per Se DUI Law: Delaware operates under a "per se" law for alcohol impairment. This means that if your Blood Alcohol Concentration (BAC) is at or above a certain legal limit, you are considered to be driving under the influence, regardless of whether there is visible impairment in your driving ability.

For drivers 21 and older: The legal BAC limit is $0.08%$ .
For commercial vehicle operators: The legal BAC limit is $0.04%$ .
For drivers under 21 (Zero Tolerance Law): Delaware has a strict "zero tolerance" policy for underage drivers. A BAC of $0.02%$ or higher for a driver under 21 can lead to an underage DUI charge, carrying immediate license suspension.

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Even if your BAC is below the legal limit, you can still face DUI charges if law enforcement can prove that your driving ability was impaired based on observations or other evidence (known as an "impairment theory" or "non-test" case). Delaware's law also extends to being in "actual physical control" of a vehicle, meaning you don't necessarily have to be driving it for a charge to occur.

Implied Consent Law

Delaware has an implied consent law. By operating a motor vehicle on the state's public roads, you are legally deemed to have given your consent to a chemical test (blood, breath, or urine) to determine your BAC or drug content if a law enforcement officer has probable cause to believe you are driving under the influence.

Refusal to Test: Refusing to submit to a chemical test after a lawful arrest for DUI in Delaware carries immediate and significant administrative penalties from the Division of Motor Vehicles (DMV), separate from any criminal prosecution. Your refusal can also be used as evidence against you in court. While you can refuse roadside field sobriety tests or portable breathalyzer tests without immediate DMV penalties, refusing the post-arrest chemical test is critical.

First refusal: Automatic 12-month driver's license revocation.
Second refusal (within 5 years): Automatic 18-month driver's license revocation.
Third or subsequent refusal (within 5 years): Automatic 24-month driver's license revocation.

These administrative penalties are imposed by the DMV regardless of the outcome of your criminal DUI case.

Delaware DUI Statistics

Impaired driving remains a serious public safety issue in Delaware. According to the Delaware Office of Highway Safety's Annual Traffic Statistical Report for 2023, there were 999 impaired driving crashes in the state, with 24% of these crashes being alcohol-related. In 2022, 39% of drivers involved in fatal crashes were alcohol-impaired, a figure higher than the national average and representing a significant increase (75%) in DUI fatalities between 2018 and 2022, as per NHTSA data released in 2024. These statistics underscore the ongoing challenge and the state's commitment to strict DUI enforcement.

Penalties for DUI in Delaware

Delaware's DUI penalties are designed to be punitive and rehabilitative, with consequences that significantly impact a convicted individual's life. Penalties escalate with each subsequent conviction, notably, Delaware has a lifetime look-back period for DUI offenses, meaning all prior DUI convictions (even decades old) can be considered for sentencing as repeat offenses, although there is a 10-year "washout period" between the first and second DUI offense for the purpose of defining it as a "second offense." Subsequent offenses after a second offense generally have a lifetime lookback.

First Offense DUI (Misdemeanor)

For a first-time DUI conviction in Delaware:

Jail Time: Up to 12 months imprisonment. There is no mandatory minimum jail time for a first offense, and often the court will suspend the jail sentence in favor of probation.
Fines: Between $500 and $1,500, plus court costs and fees.
License Revocation: Varies based on BAC:
- BAC under $0.15%$ : 12-month license revocation.
- BAC between $0.15%$ and $0.19%$ : 18-month license revocation.
- BAC $0.20%$ or greater (or refusal to submit to testing): 24-month license revocation.
- Note: For out-of-state drivers convicted of a DUI in Delaware, they are suspended from driving in Delaware for these periods and are NOT eligible for an Ignition Interlock Device (IID).
Ignition Interlock Device (IID): Mandatory installation of an IID for specific periods after license reinstatement:
- BAC under $0.15%$ : 12 months.
- BAC between $0.15%$ and $0.19%$ : 17 months.
- BAC $0.20%$ or greater: 23 months.
- Eligibility for IID usually begins immediately upon conviction for in-state drivers.
Substance Abuse Evaluation and Treatment: Mandatory completion of a court-ordered alcohol and drug abuse evaluation and any recommended education or treatment programs.
First Offender Program (FOP): Many first-time offenders may be eligible for the FOP. Successful completion can lead to a dismissal of the DUI charges, avoiding a criminal conviction, though it still counts as a prior offense if a subsequent DUI occurs. It also includes mandatory DUI classes and an IID requirement.

Repeat Offenses (Lifetime Look-back for all except the 10-year period between 1st and 2nd)

Second Offense DUI (Misdemeanor): (Second offense within 10 years of a prior conviction)
- Jail Time: Mandatory minimum of 60 days up to 18 months imprisonment. The court may suspend the minimum jail term if the offender completes a specific Court of Common Pleas DUI Treatment Program, including 30 days of community service.
- Fines: Between $750 and $2,500.
- License Revocation: 18 to 30 months, depending on BAC.
- IID: Mandatory IID for 18 to 24 months after license reinstatement, depending on BAC.
- Substance Abuse Treatment: Mandatory evaluation and treatment.
- Vehicle Forfeiture: Possible vehicle forfeiture.
Third Offense DUI (Class G Felony): (Any third offense within lifetime, but often specifically within 10 years for certain enhancements)
- Prison Time: Mandatory minimum of 90 days up to 2 years in state prison.
- Fines: Between $1,500 and $5,000.
- License Revocation: 24 to 36 months, depending on BAC.
- IID: Mandatory IID for 24 to 30 months after license reinstatement, depending on BAC.
- Mandatory Monitored Sobriety: 90 days of monitored alcohol/drug abstinence.
- Felony Criminal Record: A permanent felony conviction with significant lifelong implications.
Fourth Offense DUI (Class E Felony): (Any fourth offense within lifetime)
- Prison Time: Mandatory minimum of 6 months up to 5 years in state prison.
- Fines: Up to $7,000.
- License Revocation: Mandatory 5-year license revocation.
- IID: Mandatory IID for 36 months after license reinstatement.
- Mandatory Monitored Sobriety: 90 days of monitored alcohol/drug abstinence.
- Vehicle Forfeiture: Mandatory vehicle forfeiture.
Fifth Offense DUI (Class E Felony): (Any fifth offense within lifetime)
- Prison Time: Mandatory minimum of 1.5 years up to 5 years in state prison (must serve at least half of the prison sentence).
- Fines: Up to $10,000.
- License Revocation: Mandatory 5-year license revocation.
- IID: Mandatory IID for 36 months after license reinstatement.
- Vehicle Forfeiture: Mandatory vehicle forfeiture.
Sixth or Subsequent Offense DUI (Class D Felony for 6th; Class C Felony for 7th+):
- Prison Time: Mandatory minimums and maximums continue to increase (e.g., 6th offense: 2 to 8 years; 7th+ offense: 5 to 15 years, with higher minimums).
- Fines: Up to $10,000 or $15,000.
- License Revocation: Mandatory 5-year license revocation.
- IID & Forfeiture: Mandatory.

Aggravating Factors and Enhanced Penalties:

Certain circumstances can significantly enhance DUI penalties in Delaware:

Aggravated DUI: This category includes several factors that lead to increased fines and jail time:
- Underage DUI: Drivers under 21 with a BAC of $0.02%$ or higher face immediate license suspension and fines.
- Child Endangerment: Driving under the influence with a minor (under 17) in the vehicle incurs additional fines and jail time.
- BAC of $0.15%$ or higher: This is considered an aggravated DUI, leading to enhanced license revocation periods and longer IID requirements, even for a first offense.
Causing Injury or Death: DUIs that result in serious physical injury or death to another person are charged as felonies such as Vehicular Assault (Class F Felony for serious injury, Class E Felony for serious physical injury) or Vehicular Homicide (Class E or Class D Felony). These carry substantial prison sentences and higher fines, separate from the standard DUI penalties.

Conclusion

Delaware's DUI laws are comprehensive and severe, reflecting the state's unwavering commitment to preventing impaired driving. With no mandatory jail time for a first offense but significant and escalating penalties for repeat offenses (including a lifetime look-back period), the consequences of a DUI conviction in the First State are far-reaching. Understanding the "per se" and "zero tolerance" BAC limits, the strict implied consent law, and the impact of aggravating factors is paramount for every driver on Delaware's roads. For anyone facing a DUI charge in Delaware, immediate consultation with an experienced Delaware DUI defense attorney is strongly advised to navigate the complexities of the legal system and safeguard your rights and future.

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