CHAPTER 52

AN ACT TO AMEND SUBCHAPTER II, CHAPTER 27, TITLE 21, DELAWARE CODE, PROVIDING THE. MOTOR VEHICLE COMMISSIONER WITH AUTHORITY TO SUSPEND AND. REVOKE DRIVERS' LICENSES, AND PRIVILEGES FOR FAILURE TO SUBMIT TO CHEMICAL TEST WHERE ALLEGED TO HAVE DRIVEN A MOTOR VEHICLE WHILE:UNDER. INFLUENCE OF INTOXICATING LIQUOR.

Be it enacted by the General Assembly of the State of Delaware:

Section 1. Subchapter II, Chapter 27, Title 21, Delaware Code, is hereby amended by adding a new section 2737 to read, as .follows:

§. 2737. Suspension and revocation of license for refusal to submit to chemical test

(a) Any person who drives a motor vehicle upon the, public highways in this State shall be deemed to have given his consent to submit to a chemical test of his breath, blood or urine for the purpose of determining the alcoholic content of his blood whenever he shall be arrested for driving a motor vehicle while under the influence of intoxicating liquor.

(b) The test shall be administered by qualified personnel as defined in subparagraph (g) below at the direction of a police officer having reasonable grounds to believe such person was driving a motor vehicle while under the influence of intoxicating liquor. The police officer shall designate which of the aforesaid tests shall be administered.

(c) If the person after his arrest refuses to submit to the chemical test when requested to do so, the test shall not be given but the arresting officer shall cause to be delivered to the Department his sworn report of the refusal, stating that he had reasonable grounds to believe that the person was driving a motor vehicle while under the influence of intoxicating liquor prior to the arrest. Upon receipt of the report, the Commissioner, shall suspend the person's license or permit to drive, a, motor vehicle, or the privilege to drive a motor vehicle within this State if such person is a non-resident, and give written notice thereof to such person in the manner provided in section 2736 of this Title 21, such suspension to become effective upon the expiration of 4 days after personal delivery or deposit of such notice as provided in section 2736. If within 14 days after such personal delivery or deposit of notice, such person files written notice of request for hearing with the Motor Vehicle Commissioner, the Commissioner or his designated representative shall within 30 days of receipt of such notice, hold a hearing to determine whether the police officer had reasonable grounds to believe the person had been driving a motor vehicle upon the public highways of this State while under the influence of intoxicating liquor; whether the person was placed under arrest; whether he refused to submit to the requested test and whether the person was informed that his privilege to drive would be revoked if he refused to submit to the test. The police officer shall inform the person at the time of requesting the test of the possible consequences of his refusal to submit to the test—namely, suspension and revocation of his license, permit or privilege to drive a motor vehicle within this State for a period of 6 months.

(d) If the Commissioner rules against the person on such issues or the person does not request a hearing within such time, the Commissioner shall forthwith revoke the person's license or permit to drive a motor vehicle, or the privilege to drive a motor vehicle within this State if the person is a nonresident, giving written notice thereof provided in section 2736 of this title, such revocation to be for a period of 6 months from the date of the alleged offense. If the person is a resident without a license or permit to drive a motor vehicle within this State, the Commissioner shall deny to such person the issuance of any such license or permit within one year of such revocation.

(e) The decision of the Commissioner be final and not subject to judicial review or appeal unless the Commissioner rules against the person at a hearing requested by such person, in which event such person may appeal to the Superior Court, but such appeal shall not operate as a stay of the revocation of his license, permit or privilege to drive.

(f) Upon request of any person submitting to a chemical test under this section the result of such test shall be made available to him, unless he has entered a plea of guilty to the charge made against him.

() Only a duly licensed physician, medical technician, or registered nurse acting at the request of a police officer may withdraw blood from a person submitting to a chemical test under this section; but this limitation shall not apply to obtaining a specimen of breath or urine as to which qualified personnel shall include a police officer as well as the above persons.

(a) If for any reason a person is physically unable to supply enough breath to complete such chemical test, he shall submit to such other chemical test as authorized above as the police officer shall elect, subject to the requirements of subparagraph (g) above. Any person who is unconscious or who is otherwise in a condition rendering him incapable of refusal, shall be deemed not to have withdrawn the consent provided in subparagraph (a) above, and any test may be performed as provided in subparagraph (g) above.

(b) A duly licensed physician, medical technician or registered nurse, withdrawing a blood sample under the provisions of this section, and hospital employing such physician, technician or nurse, shall not be liable for civil damages for any acts or omissions arising out of the taking of such sample; provided, however, this subsection shall not relieve such person taking the blood sample from civil liability for any malicious act or gross negligence perpetrated in taking the blood.

(c) Upon the trial of any action or proceeding arising out of acts alleged to have been committed by any person while driving a motor vehicle in this State while under the influence of intoxicating liquor, the court may admit evidence of the refusal of such person to submit to a chemical test of his breath, blood or urine under the provisions of this section.

Approved April 30, 1969.