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The DUI Stop

21 Del. C. § 2740 — implied consent, a refusal that costs a year, and a roadside breath test that is not the test

Anyone who drives, operates or has actual physical control of a vehicle in the State is deemed to have consented to a chemical test of blood, breath or urine for alcohol or drugs, which may be required when an officer has probable cause.

  • 21 Del. C. § 2740
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  • Before a test, the person may be told that refusing means revocation for at least 1 year, where driving under the influence is alleged, or at least 2 months under the separate section for underage drivers.
  • After that warning, a refusal means no test is given, but the officer reports it, and the revocation is 1 year with no previous violation within 5 years, 18 months with one, and 24 months with 2 or more.
  • Where the officer does not give the warning, the officer may still take reasonable steps to test without consent.
  • Refusing a preliminary breath test at the roadside is not an implied consent violation, and taking one does not satisfy the law.
  • 21 Del. C. § 2741
  • 21 Del. C. § 2742

.08, and 4 hours. It is unlawful to drive under the influence of alcohol or any drug, with an alcohol concentration of .08 or more, or with .08 or more within 4 hours after driving from alcohol consumed before or during driving. Any amount of an illicit or recreational drug in the blood within 4 hours of driving is unlawful too, unless it was used only after driving or taken as lawfully prescribed.

  • 21 Del. C. § 4177

Even without a refusal, an arrest for driving under the influence brings an administrative revocation of 3 months for a first time offender, 1 year for a second, and 18 months for more.

Testing is also limited by the Fourth Amendment. The Supreme Court of the United States has held that a breath test may be taken without a warrant as part of a lawful arrest for drunk driving and a blood test may not; that a driver may not be criminally punished for refusing a blood test where no warrant was obtained; and that the natural fall of alcohol in the blood does not by itself create an emergency excusing a warrant in every case, which is decided case by case on all the circumstances. Those holdings are a floor: a state's own constitution and statutes can give more protection than they do, never less.

  • Birchfield v. North Dakota
  • Missouri v. McNeely

Whether a particular test or stop met the law is a question for a licensed Delaware attorney.

Sources for this section (6)
  1. 21 Del. C. § 2740 — Consent to submit to chemical test; probable cause; test required
  2. 21 Del. C. § 2741 — Administration of test; refusal to take test
  3. 21 Del. C. § 2742 — Revocation; notice; hearing
  4. 21 Del. C. § 4177 — Driving a vehicle while under the influence or with a prohibited alcohol or drug content; evidence; arrests; and penalties
  5. Birchfield v. North Dakota, 579 U.S. 438 (2016) — A breath test may be taken incident to arrest, a blood draw needs a warrant
  6. Missouri v. McNeely, 569 U.S. 141 (2013) — The natural fall of blood alcohol is not by itself an emergency justifying a warrantless draw

Legal information, not legal advice. Verified as of October 2026. Applying it to a particular situation is the work of a licensed Delaware attorney.

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Walked through

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