TITLE 21

Motor Vehicles

Registration, Title and Licenses

CHAPTER 27. DRIVER'S LICENSE

Subchapter III. Suspension and Revocation of License for Refusal to Submit to Chemical Test


(a) Any person who drives, operates or has in actual physical control a vehicle, an off-highway vehicle, or a moped within this State shall be deemed to have given consent, subject to this section and §§ 4177 and 4177L of this title 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. The testing may be required of a person when an officer has probable cause to believe the person was driving, operating or in physical control of a vehicle in violation of §§ 4177 and 4177L or § 2742 of this title, or a local ordinance substantially conforming thereto.

(b) The testing shall be required of a person when an officer has probable cause to believe the person was driving, operating or in physical control of a vehicle in violation of § 4177 or § 2742 of this title or a local ordinance substantially conforming thereto and was involved in an accident which resulted in a person's death. In the event of a fatal accident if the officer does not believe that probable cause exists to require testing, then the officer shall file a written report outlining the reasons for that determination.

21 Del. C. 1953, § 2740; 57 Del. Laws, c. 52; 61 Del. Laws, c. 474, § 1; 63 Del. Laws, c. 430, § 1; 64 Del. Laws, c. 13, § 1; 70 Del. Laws, c. 36, § 2; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 236, § 1; 70 Del. Laws, c. 265, § 1.;

(a) 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 violation of § 4177 is alleged; or

(2) Revoked for a period of at least 2 months if a violation of § 4177L is alleged.

The test(s) shall be administered by qualified personnel, as defined in § 2746 of this title, at the direction of the police officer who shall designate which of the tests shall be administered.

(b) 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.

(c) The fact that the police officer offered or required a person to submit to a preliminary screening test of the person's breath in order to estimate the alcohol concentration of the person's blood, at the scene of the stop or other initial encounter between the officer and the person, shall have no bearing upon the implied consent provisions of this chapter. Refusal to take such a preliminary screening test shall not be deemed an implied consent violation nor shall the taking of such a test satisfy the requirements of the implied consent law.

21 Del. C. 1953, § 2740A; 57 Del. Laws, c. 52; 61 Del. Laws, c. 474, § 1; 63 Del. Laws, c. 430, § 2; 64 Del. Laws, c. 13, § 2; 70 Del. Laws, c. 36, § 12; 70 Del. Laws, c. 186, § 1.;

(a) 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 shall report the refusal to the Department. 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.

(b)(1) Upon certification by the police officer that there existed probable cause to believe that the person had been acting in violation of § 4177 of this title or a local ordinance substantially conforming thereto and that the person refused to submit to a chemical test after being informed of the penalty of revocation for such refusal, the Secretary shall revoke the person's driver's license and/or driving privilege for a period of 1 year for a person with no previous violation of § 4177 of this title or this section or a similar statute of any state or the District of Columbia or local government, within 5 years of the date of the charge in question; 18 months' revocation for a person with 1 previous violation of such statutes as described above; and 24 months' revocation for a person with 2 or more previous violations of such statutes as described above.

(2) Upon certification by the police officer that there existed probable cause to believe that the person had been acting in violation of § 4177L of this title or a local ordinance substantially conforming thereto and that the person refused to submit to a chemical test after being informed of the penalty of revocation for such refusal, the Secretary shall revoke the person's driver's license and/or driving privilege for a period of 2 months for a person with no previous violation of § 4177L of this title or this section or a similar statute of any state or the District of Columbia or local government; 6 months for a person with a previous violation of such statutes as described above; and 12 months revocation for a person with 2 or more previous violations of such statutes as described above.

(c) Except in those cases wherein the police officer acts pursuant to subsection (b) of this section:

(1) Upon certification by the police officer that there existed probable cause to believe that the person was in violation of § 4177 of this title or a local ordinance substantially conforming thereto and the person was arrested on that occasion for a violation of § 4177 of this title or a local ordinance substantially conforming thereto or for violation of a criminal statute dealing with injury or death caused to another person by the person's driving or operation of the vehicle, if driving under the influence is included as an element of such charge, the Secretary shall revoke the person's driver's license and/or driving privilege for a period of 3 months for a first time DUI offender, 1 year for a second DUI offender, or 18 months for more than 2 DUI offenses. For purposes of this subsection, a DUI offender shall include anyone who has previously committed a first offense as defined in § 4177B(e) or lost their license pursuant to this section and any person convicted of a violation of § 4177 of this title or similar statutes of any state or the District of Columbia or local government within 5 years of the date of the charge in question, a revocation within 5 years of said date for an implied consent violation or a revocation within 5 years of said date under this subsection.

(2) Upon certification by the police officer that there existed probable cause to believe that the person was in violation of § 4177L of this title or a local ordinance substantially conforming thereto, and the person was arrested on that occasion for a violation of § 4177L of this title or a local ordinance substantially conforming thereto, the Secretary shall revoke the person's driver's license and/or driving privileges for a period of 2 months for the first offense under said section or from 6 to 12 months for each subsequent offense pursuant to said section.

(d) No revocation under subsection (b) or (c) of this section is effective until the Secretary or a police officer or other person acting on the Secretary's behalf notifies the person of the revocation and allows the person a 15-day period to request of the Secretary in writing a hearing as herein provided. If no request is filed in writing with the Division of Motor Vehicles within the 15-day period, the order of revocation becomes effective. If a request for a hearing is filed, a revocation is not effective until the final decision of the hearing officer resulting in a decision adverse to the person.

(e) On behalf of the Secretary, the police officer offering a chemical test or directing the administration of a chemical test shall serve immediate notice of revocation on a person who refuses to permit chemical testing after being informed of the penalty of revocation for such refusal, or on a person who is arrested on that occasion, either for a violation of § 4177 or § 4177L of this title or a local ordinance substantially conforming thereto or for violation of a criminal statute dealing with injury or death caused to another person by the person's driving or operation of the vehicle, if driving under the influence is included as an element of such charge. The officer shall take the Delaware license or permit of the driver in any such case and issue a temporary license effective only for 15 days with a provision for an additional period if a written request for a hearing is received by the Division of Motor Vehicles within the 15-day period. The police officer shall send the person's driver's license or permit to the Secretary along with the certificate required by subsection (b) or (c) of this section.

(f) The hearing under this section shall be before the Secretary or the Secretary's designee. The scope of the hearing shall cover the issues of:

(1) With respect to subsections (b) and (c) of this section, whether the police officer had probable cause to believe the person was in violation of § 4177 or § 4177L of this title or a local ordinance substantially conforming thereto.

(2) With respect to paragraph (c)(1) of this section, whether by a preponderance of the evidence it appears that the person was in violation of § 4177 of this title or a local ordinance substantially conforming thereto. For purposes of this subsection an alcohol concentration of .08 or more pursuant to testing provided for in this section, or § 4177 of this title, or a positive indication of the presence of drugs, shall be conclusive evidence of said violation.

(3) With respect to paragraph (c)(2) of this section, whether by a preponderance of the evidence it appears that the person was in violation of § 4177L of this title or a local ordinance substantially conforming thereto. For purposes of this subsection an alcohol concentration of .02 or more pursuant to the testing referred to in this section shall be conclusive evidence of said violation.

(4) With respect to subsection (b) of this section, whether the person refused to permit the test after being informed of the penalty of revocation for such refusal.

(g) The hearing specified in this section shall be scheduled within 60 days following the filing of the request for a hearing.

(h) In addition to the revocation authorized by this section, the Secretary shall require attendance of the person whose license is revoked at a course of instruction or rehabilitation program established under § 4177D of this title.

21 Del. C. 1953, § 2740B; 57 Del. Laws, c. 52; 57 Del. Laws, c. 620, § 12A; 61 Del. Laws, c. 474, § 1; 63 Del. Laws, c. 307, § 1; 63 Del. Laws, c. 430, § 3; 64 Del. Laws, c. 13, § 3; 70 Del. Laws, c. 26, § 11; 70 Del. Laws, c. 36, §§ 3, 5-7, 13-15; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 92, § 13; 74 Del. Laws, c. 333, § 4; 75 Del. Laws, c. 397, § 14; 79 Del. Laws, c. 396, § 1.;

(a) 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 shall report the refusal to the Department. 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.

(b)(1) Upon certification by the police officer that there existed probable cause to believe that the person had been acting in violation of § 4177 of this title or a local ordinance substantially conforming thereto and that the person refused to submit to a chemical test after being informed of the penalty of revocation for such refusal, the Secretary shall revoke the person's driver's license and/or driving privilege for a period of 1 year for a person with no previous violation of § 4177 of this title or this section or a similar statute of any state or the District of Columbia or local government, within 5 years of the date of the charge in question; 18 months' revocation for a person with 1 previous violation of such statutes as described above; and 24 months' revocation for a person with 2 or more previous violations of such statutes as described above.

(2) Upon certification by the police officer that there existed probable cause to believe that the person had been acting in violation of § 4177L of this title or a local ordinance substantially conforming thereto and that the person refused to submit to a chemical test after being informed of the penalty of revocation for such refusal, the Secretary shall revoke the person's driver's license and/or driving privilege for a period of 2 months for a person with no previous violation of § 4177L of this title or this section or a similar statute of any state or the District of Columbia or local government; 6 months for a person with a previous violation of such statutes as described above; and 12 months revocation for a person with 2 or more previous violations of such statutes as described above.

(c) Except in those cases wherein the police officer acts pursuant to subsection (b) of this section:

(1) Upon certification by the police officer that there existed probable cause to believe that the person was in violation of § 4177 of this title or a local ordinance substantially conforming thereto and the person was arrested on that occasion for a violation of § 4177 of this title or a local ordinance substantially conforming thereto or for violation of a criminal statute dealing with injury or death caused to another person by the person's driving or operation of the vehicle, if driving under the influence is included as an element of such charge, the Secretary shall revoke the person's driver's license and/or driving privilege for a period of 3 months for a first time DUI offender, 1 year for a second DUI offender, or 18 months for more than 2 DUI offenses. For purposes of this subsection, a DUI offender shall include anyone who has previously committed a first offense as defined in § 4177B(e) or lost their license pursuant to this section and any person convicted of a violation of § 4177 of this title or similar statutes of any state or the District of Columbia or local government within 5 years of the date of the charge in question, a revocation within 5 years of said date for an implied consent violation or a revocation within 5 years of said date under this subsection.

(2) Upon certification by the police officer that there existed probable cause to believe that the person was in violation of § 4177L of this title or a local ordinance substantially conforming thereto, and the person was arrested on that occasion for a violation of § 4177L of this title or a local ordinance substantially conforming thereto, the Secretary shall revoke the person's driver's license and/or driving privileges for a period of 2 months for the first offense under said section or from 6 to 12 months for each subsequent offense pursuant to said section.

(d) No revocation under subsection (b) or (c) of this section is effective until the Secretary or a police officer or other person acting on the Secretary's behalf notifies the person of the revocation and allows the person a 15-day period to request of the Secretary in writing a hearing as herein provided. If no request is filed in writing with the Division of Motor Vehicles within the 15-day period, the order of revocation becomes effective. If a request for a hearing is filed, a revocation is not effective until the final decision of the hearing officer resulting in a decision adverse to the person.

(e) On behalf of the Secretary, the police officer offering a chemical test or directing the administration of a chemical test shall serve immediate notice of revocation on a person who refuses to permit chemical testing after being informed of the penalty of revocation for such refusal, or on a person who is arrested on that occasion, either for a violation of § 4177 or § 4177L of this title or a local ordinance substantially conforming thereto or for violation of a criminal statute dealing with injury or death caused to another person by the person's driving or operation of the vehicle, if driving under the influence is included as an element of such charge. The officer shall take the Delaware license or permit of the driver in any such case and issue a temporary license effective only for 15 days with a provision for an additional period if a written request for a hearing is received by the Division of Motor Vehicles within the 15-day period. The police officer shall send the person's driver's license or permit to the Secretary along with the certificate required by subsection (b) or (c) of this section.

(f) The hearing under this section shall be before the Secretary or the Secretary's designee. The scope of the hearing shall cover the issues of:

(1) With respect to subsections (b) and (c) of this section, whether the police officer had probable cause to believe the person was in violation of § 4177 or § 4177L of this title or a local ordinance substantially conforming thereto.

(2) With respect to paragraph (c)(1) of this section, whether by a preponderance of the evidence it appears that the person was in violation of § 4177 of this title or a local ordinance substantially conforming thereto. For purposes of this subsection an alcohol concentration of .08 or more pursuant to testing provided for in this section, or § 4177 of this title, or a positive indication of the presence of drugs, shall be conclusive evidence of said violation.

(3) With respect to paragraph (c)(2) of this section, whether by a preponderance of the evidence it appears that the person was in violation of § 4177L of this title or a local ordinance substantially conforming thereto. For purposes of this subsection an alcohol concentration of .02 or more pursuant to the testing referred to in this section shall be conclusive evidence of said violation.

(4) With respect to subsection (b) of this section, whether the person refused to permit the test after being informed of the penalty of revocation for such refusal.

(g) The hearing specified in this section shall be scheduled within 60 days following the filing of the request for a hearing.

(h) In addition to the revocation authorized by this section, the Secretary shall require attendance of the person whose license is revoked at a course of instruction or rehabilitation program established under § 4177D of this title.

(i) If a person's driver's license is revoked pursuant to subsections (b) or (c) of this section and the person has not yet been adjudicated guilty and sentenced to the charge of driving under the influence, the Justice of the Peace Court may request in writing that the Division of Motor Vehicles issue a conditional license to the revoked driver as a condition of pretrial release pursuant to § 2108 or § 2112 of Title 11 if the person is subject to continuous sobriety monitoring.

(1) When the Division of Motor Vehicles receives a request from the Justice of the Peace Court to issue a conditional license to a revoked driver, the Division may issue a conditional license during the period of revocation provided the person's driver's license is not suspended, revoked, denied, or otherwise unavailable for any other violation of the law of any jurisdiction that would prohibit the issuance of the conditional license unless it is determined by the Secretary of Transportation or the Secretary's designee that the individual is eligible for reinstatement. This conditional license only permits the driver to operate a motor vehicle to travel to and from work, school, medical appointments, any Court, or any appointments related to the driver's continuous sobriety monitoring.

(2) If at any point the revoked driver ceases to be subject to continuous sobriety monitoring, the Justice of the Peace Court must promptly notify the Division of Motor Vehicles of the change in the revoked driver's status. The Division of Motor Vehicles must direct such person to surrender said conditional license to the Division of Motor Vehicles and the Division of Motor Vehicles will restore the full revocation of the driver's license for the remainder of the term of the revocation.

(3) If at any point the Justice of the Peace Court determines, in its discretion, that the revoked driver is no longer entitled to a conditional license, the Justice of the Peace Court must promptly notify the Division of Motor Vehicles of that determination. The Division of Motor Vehicles must direct such person to surrender said conditional license to the Division of Motor Vehicles and must restore the full revocation of the driver's license for the remainder of the term of the revocation.

(4) Any person whose driver's license has been revoked and to whom a conditional license has been issued under this chapter, and who drives any motor vehicle upon the highways of this State contrary to the conditions placed upon such conditional license during the period of such conditional license, is guilty of an unclassified misdemeanor, and, upon conviction thereof, shall be fined not less than $28.75 or more than $230. The Division, upon receiving a record of conviction of any person operating a motor vehicle in violation of the conditions imposed upon said conditional license, must forthwith direct such person to surrender said conditional license to the Division of Motor Vehicles and must notify the Justice of the Peace Court of the cancellation of the conditional license.

21 Del. C. 1953, § 2740B; 57 Del. Laws, c. 52; 57 Del. Laws, c. 620, § 12A; 61 Del. Laws, c. 474, § 1; 63 Del. Laws, c. 307, § 1; 63 Del. Laws, c. 430, § 3; 64 Del. Laws, c. 13, § 3; 70 Del. Laws, c. 26, § 11; 70 Del. Laws, c. 36, §§ 3, 5-7, 13-15; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 92, § 13; 74 Del. Laws, c. 333, § 4; 75 Del. Laws, c. 397, § 14; 79 Del. Laws, c. 396, § 1; 81 Del. Laws, c. 155, § 1.;

(a) Any revocation pursuant to § 2742(b)(1) of this title shall be for a period of 1 year, 18 months or 24 months as appropriate, from the effective date of the revocation.

(b) Any revocation pursuant to § 2742(c)(1) of this title shall be for a period of 3 months, 1 year or 18 months, as appropriate, from the effective date of the revocation.

(c) The Secretary shall not issue a driver's license to anyone who has been found in violation of § 2742(b)(1) or (c)(1) of this title until:

(1) They have satisfactorily completed a program established under § 4177D of this title; and

(2) Have paid all fees under the schedule adopted by the Secretary; and

(3) The individual has had a favorable character investigation conducted by the Division of Motor Vehicles.

(d) Any revocation pursuant to § 2742(b)(2) of this title shall be for a period of 2 months, 6 months or 12 months as appropriate, from the effective date of the revocation.

(e) Any revocation pursuant to § 2742(c)(2) of this title shall be for a period of 2 months, 6 months or 12 months as appropriate, from the effective date of the revocation.

(f) If, after expiration of the period of revocation and upon compliance with subsection (c) of this section, the Secretary refuses to issue a driver's license, the applicant may appeal the Secretary's denial to the Court of Common Pleas in the county wherein the applicant resides.

(g) Notwithstanding subsection (a) of this section, upon satisfactory completion of a program established under § 4177D of this title a person who is a first offender and meets the criteria specified in § 4177B(a) and whose license has been revoked pursuant to § 2742(b) of this title shall be permitted to apply for a driver's license under the following terms:

(1) Payment of all fees under the schedule adopted by the Secretary;

(2) At least 6 months have elapsed since the date of the revoked license or temporary license, whichever is later, reached the Division of Motor Vehicles;

(3) The individual has had a favorable character investigation conducted by the Division of Motor Vehicles.

(h) Notwithstanding subsections (a) and (b) of this section, any person who meets the criteria specified in § 4177C of this title may be permitted to apply for the ignition interlock device [IID] to be installed on a vehicle to be driven by the applicant and may be issued an IID license upon meeting the requirements specified in § 4177C of this title.

21 Del. C. 1953, § 2740C; 57 Del. Laws, c. 52; 61 Del. Laws, c. 474, § 1; 63 Del. Laws, c. 307, § 3; 63 Del. Laws, c. 430, § 4; 64 Del. Laws, c. 13, § 4; 69 Del. Laws, c. 333, § 3; 70 Del. Laws, c. 36, §§ 10, 11, 16, 17; 75 Del. Laws, c. 397, § 10.;

The decision of the Secretary shall be final and not subject to judicial review or appeal, unless the Secretary rules against the person at a hearing requested by such person in which event the person may appeal to the Court of Common Pleas, but the appeal shall not operate as a stay of the revocation of that person's license, permit or privilege to drive.

21 Del. C. 1953, § 2740D; 57 Del. Laws, c. 52; 63 Del. Laws, c. 430, § 5; 64 Del. Laws, c. 13, § 5; 69 Del. Laws, c. 333, § 4; 70 Del. Laws, c. 186, § 1.;

Upon request of any person submitting to a chemical test under this subchapter the result of such test shall be made available to that person, unless that person has entered a plea of guilty to the charge made against that person.

21 Del. C. 1953, § 2740E; 57 Del. Laws, c. 52; 70 Del. Laws, c. 186, § 1.;

Only duly licensed physicians, registered nurses, licensed practical nurses or other persons trained in medically accepted procedures for the drawing of blood and employed by a hospital or other health care facility, acting at the request of a police officer, may withdraw blood from a person submitting to a chemical test under this subchapter. 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 personnel. Notwithstanding any other provision of law to the contrary, it shall not be necessary in any proceeding under this Code to produce evidence that a person who has withdrawn blood from a person submitting to a chemical test under this title was qualified to do so as defined in this section. Notwithstanding any other provision of law to the contrary, it shall not be necessary to present the testimony of, or certification by, a person who has withdrawn blood from a person pursuant to this section in order to establish chain of physical custody of such evidence.

21 Del. C. 1953, § 2740F; 57 Del. Laws, c. 52; 66 Del. Laws, c. 160, § 1; 71 Del. Laws, c. 222, § 1.;

If for any reason a person is physically unable to supply enough breath or complete the chemical test, that person shall submit to such other chemical tests as authorized by this subchapter as the police officer shall elect, subject to the requirements of § 2746 of this title. Any person who is unconscious or who is otherwise in a condition rendering that person incapable of refusal shall be deemed not to have withdrawn the consent provided in § 2740 of this title and any test may be performed as provided in § 2746 of this title.

21 Del. C. 1953, § 2740G; 57 Del. Laws, c. 52; 63 Del. Laws, c. 430, § 6; 64 Del. Laws, c. 13, § 6; 70 Del. Laws, c. 186, § 1.;

A duly licensed physician, medical technician or registered nurse withdrawing a blood sample under this subchapter and a 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 section shall not relieve such person from civil liability for any malicious act or gross negligence perpetrated in taking the blood.

21 Del. C. 1953, § 2740H; 57 Del. Laws, c. 52.;

Upon the trial of any action or proceeding arising out of the acts alleged to have been committed by any person while in violation of § 4177 or § 4177L of this title or local ordinance substantially conforming thereto, the court may admit evidence of the refusal of such person to submit to a chemical test of breath, blood or urine under this subchapter.

21 Del. C. 1953, § 2740I; 57 Del. Laws, c. 52; 63 Del. Laws, c. 430, § 7; 64 Del. Laws, c. 13, § 7; 70 Del. Laws, c. 36, § 8; 70 Del. Laws, c. 186, § 1.;

(a) Upon the trial of any action or proceeding arising out of acts alleged to have been committed by any person while under the influence of alcohol, a drug or drugs, with respect to any chemical test taken by or at the request of the State, the court shall admit the results of a chemical test of the person's breath, blood or urine according to normal rules of search and seizure law. The informing or failure to inform the accused concerning the implied consent law shall not affect the admissibility of such results in any case, including a prosecution for a violation of § 4177 of this title. The informing of an accused concerning the implied consent law shall only have application and be relevant at a hearing concerning revocation of the driver's license of said person for a violation of the implied consent law. Nothing contained in this section shall be deemed to preclude the admissibility of such evidence when such evidence would otherwise be admissible under the law relative to search and seizure law such as when such evidence has been obtained by valid consent or other means making the obtaining of the evidence legal under the Fourth Amendment.

(b) The doctor-patient privilege shall not apply to the disclosure to law-enforcement personnel nor the admissibility into evidence in any criminal proceeding of the results of a chemical test of a person's blood, breath or urine for the purpose of determining the alcohol or drug content of that person's blood irrespective of whether such test was done at the request of a treating physician, other medical personnel or a peace officer.

63 Del. Laws, c. 86, § 1; 63 Del. Laws, c. 430, § 8; 64 Del. Laws, c. 13, § 8; 70 Del. Laws, c. 186, § 1.;