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Tests To Decline When Pulled Over For DWI In Delaware


While most motorists are well-aware of the harsh penalties of a drunk driving conviction, it is always helpful to review the basics. Under the Delaware statute on Driving While Intoxicated (DWI), you face up to 12 months in jail and fine ranging from $500 to $1,500 for a first-time offense. The severity of charges increases with subsequent convictions, possibly up to a Class C Felony. The criminal penalties also become more severe, so you could even face a mandatory minimum of 5 years in prison.

However, the prosecutor has a heavy burden for getting a conviction: The government must prove guilt beyond a reasonable doubt, and test results are typically the most effective evidence available. Police may evaluate your level of impairment in different ways, giving the prosecution ample proof to support its case. Instead of consenting, it might be worthwhile to decline. A Wilmington Refusing a Breath Test lawyer can explain details, but information about drunk driving tests to refuse is useful.

Field Sobriety Tests: Police often rely on standardized tests to determine impairment, including:

  • Horizontal Gaze Nystagmus test, which evaluates how well your eyes focus on an object;
  • Walk and Turn test to assess your ability to stay steady and follow officers’ instructions; and,
  • One Leg Stand test for checking your balance and abilities to multitask.

You can refuse, and it is probably wise to decline if you have had more than a few beverages. When police do not have a sufficient legal basis that these coordination tests would reveal, they might not have enough support to administer additional tests.

 Portable Breath Test: You can refuse to do the breathalyzer if officers ask you to blow while at the roadside stop. The devices used by police in the field are notoriously inaccurate, since they are not properly calibrated and lead to unreliable results. In refusing a portable breath test, you do NOT run afoul of Delaware’s informed consent law.

 Breath Test in Custody: If you are placed under arrest for DWI, the state informed consent law does apply. By statute, you agree to submit to chemical testing if police request it; this is a condition of your driving privileges. A refusal to take a blood or breath test could lead to a driver’s license suspension, but it may be wise in certain cases. When making the decision, keep in mind:

  • Chemical tests must be conducted within 4 hours after the alleged act of drunk driving.
  • There are defenses to the results of a breathalyzer test.
  • It is still possible to convict for DWI without results of a chemical test, if police find that your abilities are impaired.

Contact a Delaware Drunk Driving Defense Attorney Right Away 

You are innocent until proven guilty in any criminal case, and the burden is on the government to meet the legal requirements. By consenting to tests, you could be providing the prosecution with the evidence it needs to convict. For more information, please call 302.600.1262 or go online to reach Attorney Michael W. Modica. We are happy to set up an initial consultation at our Wilmington, DE office.

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