Many states in the United States operate under a doctrine called “implied consent” when driving an automobile. This doctrine is enforced throughout the state of Delaware, and Delaware drivers need to be aware of it and its implications. To summarize, implied consent means any driver automatically consents to take a field sobriety test if arrested for driving under the influence.
While the intent of this law is to protect public safety, it curtails the options of Delaware drivers who may be stopped for this offense. If you are arrested under lawful circumstances by an officer such as a police officer, sheriff’s deputy, or highway patrol officer, you are legally required to take either a breath test or a blood test at the officer’s selection.
Unless the test is administered improperly or your rights are not respected, you have few options in terms of what to do. An officer is required to inform you of the penalties for refusal, which include losing your license. The duration of the penalty changes based upon the number of times you have been involved in a similar offense in the past.
Obviously, those with an otherwise clean driving record have the least harsh penalties.
For your first refusal, you will lose your license for 1 year.
For your second refusal, 18 months.
For your third and others after, 24 months.
Officers in Delaware are empowered to take “reasonable steps” to compel you to take the test. There is a precedent for officers to use what might seem like unusual force, such as by holding someone down or by threatening the use of a stun gun in order to administer the test.
Refusing a Breathalyzer or Field Sobriety Test
Legally speaking, a Delaware native or visitor must “expressly refuse” to take the test in order to stop the officer from taking these “reasonable steps.” By expressly refusing, you may effectively remove the ability of the officers to compel you, but you will face the legal consequences.
Those with access to a legal database or research library may review McCann v. State, 588 A.2d 1100 (1991) to learn more about “reasonable steps.” Be aware that Delaware law also recognizes a “preliminary breath test.” While you are not required to take a preliminary test, understand that it is used to establish probable cause for a DUI case. On the basis of your refusal, an officer may still arrest you if he or she has other reasons to believe that you are intoxicated.
Challenging Field Sobriety Test Results with an Attorney
Do not assume you are guilty just because you failed a field sobriety or Breathalyzer test. Police make mistakes, which an experienced DUI and Breathalyzer defense lawyer can find. Sometimes machines are faulty, which a knowledgeable DUI and Breathalyzer defense attorney can discover.
Even if the police acted correctly and the machine was in good working condition, a DUI and Breathalyzer defense attorney can still help you minimize the negative consequences of a DUI conviction. Contact my office today to learn more about your rights and legal options after a DWI arrest.
Foreign language interpreters are available
Free initial consultation about your criminal defense case
You only have 15 days after getting your temporary driver’s license to demand a DMV hearing. If you don’t demand a license suspension hearing, the DMV will suspend your license whether or not you are convicted of the drunk-driving charges.
I am John R. Garey, a Kent County, Delaware, Breathalyzer defense attorney with more than 20 years of criminal law experience. For 15 years I worked as a prosecuting attorney for Kent and Sussex counties, before leaving to start my own criminal defense practice in Dover.
Probable Cause and Breathalyzers or Field Sobriety Tests
There are two central questions in any DUI and Breathalyzer defense case:
Did the police have probable cause to administer the field sobriety test and then the Breathalyzer, blood or urine test?
Did the police use proper procedures when administering the sobriety tests?
I will review all the facts and evidence in your case to find out whether the police had probable cause and whether they followed proper procedure. If I find violations, I can challenge the improper stop, the field sobriety testing or the Breathalyzer test. I may be able to get the test evidence suppressed, which greatly increases your chances for a positive resolution.
Even in the worst-case scenario, I can still help you prevent administrative suspension of your driver’s license so that you can continue driving while the criminal case is pending.
Contact a Kent County Field Sobriety Test Attorney
You have nothing to lose by making an appointment to privately discuss the facts of your DUI arrest with me. If you can’t come to me, I can come to you. Contact my office to schedule a consultation. Please call us at 302-244-5312.