Can You Legally Refuse a Breathalyzer or Blood Test in Delaware?
You can physically refuse a breathalyzer in Delaware, but doing so violates the Implied Consent Law. This triggers an automatic 1-year license revocation, even if you are never convicted of a DUI in court.
Understanding Delaware's Implied Consent Law
Imagine driving home through Newark or Smyrna late at night. Suddenly, you see flashing lights in your rearview mirror. After a few questions, the police officer asks you to step out of the vehicle and blow into a breathalyzer. In that stressful moment, you might wonder: Do I have the right to say no?
Under Delaware law, driving on public roads is considered a privilege, not a constitutional right. By accepting a Delaware driver's license, you automatically agree to the state's "Implied Consent" law (21 Del. C. § 2740). This means you have legally already consented to chemical testing of your breath, blood, or urine if an officer has probable cause to suspect you are driving under the influence. If you refuse, the state will punish you severely. If you have already refused a test and lost your license, it is critical to act fast. Browse our US Lawyers Directory to find a local defense attorney who can fight your suspension.
Field Sobriety Tests (PBT) vs. Official Intoxilyzer Tests
It is important to understand the difference between the two types of breath tests used by Delaware police, as your rights differ for each.
1. The Portable Breath Test (PBT): This is the small, handheld device the officer uses on the side of the road before you are arrested. Under Delaware law, you can legally refuse the PBT and the physical field sobriety tests (like walking in a straight line) without losing your license. However, the officer will likely arrest you anyway based on other observations (like smelling alcohol).
2. The Official Intoxilyzer: Once you are arrested and taken to the police station or a mobile DUI command unit, the police will ask you to blow into a large, highly calibrated machine called the Intoxilyzer. Refusing this official test triggers the Implied Consent penalties.
Mandatory License Revocation Periods for Refusal
If you refuse the official chemical test, the officer will immediately confiscate your driver's license and issue Form MV 529, Delaware, Division of Motor Vehicles, Official Notice and Order of Revocation and Temporary License pursuant to 2 Del. Admin. Code § 2203-4.1. Under 21 Del. C. § 2742 and 21 Del. C. § 2743(a), the Delaware Division of Motor Vehicles, Dover will impose strict administrative revocations completely separate from whatever happens in criminal court.
- First Refusal: 1-year mandatory license revocation.
- Second Refusal: 18-month mandatory license revocation.
- Third Refusal: 24-month mandatory license revocation.
You only have 15 days to request a DMV administrative hearing to challenge this revocation. If you do not formally request this hearing, your license is suspended automatically, and you will not be allowed to drive for any reason until you serve the time and install an Ignition Interlock Device.
How to Challenge a Forced or Unconstitutional Blood Draw
If you refuse the breathalyzer at the station, the police do not just give up. In many cases in New Castle or Sussex County, the arresting officer will immediately contact an on-call judge at the Delaware Justice of the Peace Court, Dover to request an electronic search warrant for your blood.
Under the landmark U.S. Supreme Court ruling in Birchfield v. North Dakota, 579 U.S. 438 (US Supreme Court 2016), taking a blood sample without voluntary consent or a judicial warrant violates the Fourth Amendment. If the judge signs the warrant, you can no longer refuse. The police will take you to a hospital or use a trained phlebotomist to forcibly draw your blood. However, a skilled attorney can later fight this in court. Your lawyer will review the warrant to see if the officer actually had "probable cause" to request it. If the officer lied on the warrant application or made procedural errors, the judge may throw the blood results out, crippling the prosecution's case.
Comparing Penalties: Refusal vs. Failing the Test
Many drivers wonder if it is better to refuse and face the DMV penalty, or take the test and hand the police evidence of their guilt. There is no simple answer, but you must weigh the consequences.
| Action Taken | DMV License Penalty (1st Offense) | Impact on Criminal Court Case |
|---|---|---|
| Take Test & Fail (Over 0.08) | 3-month revocation (eligible for early IID). | Prosecutor has hard scientific evidence to convict you. |
| Refuse the Test | 1-year mandatory revocation. | Prosecutor has no BAC evidence, making it harder to prove guilt. |
While a refusal gives you a much longer DMV suspension, it forces the prosecutor to rely solely on the officer's testimony (like slurred speech or swerving) to secure a criminal conviction. A good lawyer can often poke holes in an officer's subjective observations.
Frequently Asked Questions (FAQ)
Can the jury be told that I refused the breath test?
Yes. If your case goes to trial, the prosecutor is legally allowed to tell the jury that you refused the test. They will argue that you refused because you knew you were guilty (this is called "consciousness of guilt").
Can I talk to a lawyer before deciding to take the breathalyzer?
No. In Delaware, you do not have the right to consult with an attorney before deciding whether to submit to a chemical test under the Implied Consent law. You must make the decision on the spot.
What if I tried to blow but the machine didn't register it?
If you fail to provide a sufficient breath sample (often because of asthma or anxiety), the officer will usually mark it as a "refusal." Your lawyer will need to present medical records at your DMV hearing to prove it was a physical inability, not an intentional refusal.
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