Delaware DUI: Refusal to Take a Blood, Breath or Urine Test

In Delaware, if you get pulled over for a DUI and the officer asks you to take a blood, breath, or urine test, do you have to take one? What happens if you refuse?

Implied Consent

Delaware law requires you to take a breath or blood test if you are arrested for a DUI. Delaware’s “implied consent” law says that if you are lawfully arrested by an officer who has probable cause to believe that you have been driving under the influence, then you consent to taking a chemical test of your blood, breath or urine for the purpose of determining your blood alcohol content (BAC). The officer gets to choose which test you take and he or she should tell you that if you refuse the test, you will lose your license. If the officer doesn’t tell you, however, and if you do not expressly refuse, then the law says the officer can still take “reasonable steps” to administer the test.

The meaning of reasonable steps an officer can take to get you to take the test varies. A Delaware court decided in one case that it was reasonable for an officer to use a stun gun to keep an aggressive person from harming a medical technician while the technician performed a blood test in a hospital. In another case, it was unreasonable for two officers to hold down a person’s arms to get a blood test in a police station where she was only verbally resisting the test. Generally, the reasonableness of the officer’s actions depends on where the test is taken – in a hospital where innocent technicians can get hurt or in some other place – and the amount of aggression by the person in custody. The only other times an officer could force you to take a test is if you were unconscious or if someone died as a result of the incident that caused you to be arrested.

To read more about reasonable steps an officer can take to get you to take a test, see McCann v. State Del.Supr. 588 A.2d 1100 (1991) (you may need to go to a Delaware law library to find this case) and Delaware v. Crespo, (2007) unpublished New Castle County Case No. 0506005562.

Delaware law also allows for a preliminary breath test. This works like a field sobriety test. After you have been pulled over, an officer can ask you to take a breath test to establish probable cause that you were driving under the influence. You do not have to take this preliminary test. Refusing it, however, probably won’t work in your favor if the officer has some other reason to think you had been drinking. Based on that other reason, the officer could still arrest you and then you will be required to take a test – including the breath test – under the law described in the paragraphs above. Once you have been arrested, you cannot refuse a test without penalty.

You can read Delaware’s implied consent law in the Delaware Code Annotated 21 - 2740.

Refusing to Take the Test


1st  Offense

2nd Offense

3rd  Offense

Refusal to take test

1 year license revocation (2 years if under 21 years of age)

1 year license revocation (2 years if under 21 years of age)

1 year license revocation (2 years if under 21 years of age)

In Delaware, you will lose your license for one year if this is the first time you refused to take a test or if it has been more than five years since your last refusal. For your second refusal, you lose your license for 18 months. For your third or any subsequent refusal, you will lose your license for 24 months.

You can read about the penalties for refusal at Delaware Code Annotated 21 – 2742.

Should You Refuse to Take a Mandatory DUI Test?

It usually does not help you to refuse to take a blood, breath, or urine test when you are arrested for a DUI. In Delaware, the consequences for refusal are milder than those for a DUI, which include hefty fines, jail time, and a mandatory rehabilitation program. Refusing the test does not guarantee that you won’t be convicted – you can still be found guilty of an DUI even if your refusal means that the state does not have proof that your BAC was over.08%, the legal limit for those over 21. In fact, the prosecution can use your refusal against you by arguing that you refused the test because you knew that you were intoxicated and guilty of DUI.

(Check out our  blood alcohol content chart  for an estimate of how many drinks it takes to get to the legal limit.)

Get Help With Your DUI

If you have been arrested on a DUI charge in Delaware or any other state, get help from an experienced DUI attorney. Unlike other traffic related charges, which might be worth fighting without a lawyer, conviction for a DUI has serious consequences – especially if the incident involved injury to people or property, or if it’s your second or subsequent DUI. To avoid or reduce the consequences, your best bet is to find an attorney who is knowledgeable about your state’s laws and about how the system works in your county’s court.

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