Written by attorney Michael W Modica

Delaware DUI- Answers to Common Questions


The police officer told me that I do not need a lawyer. Is this true?

In the criminal justice system any individual can represent himself for any matter. However, an individual that represents himself is at a severe disadvantage which the police officer and the prosecutor will probably exploit in court. If you do not know what you are doing in a Courtroom, it is akin to attempting to fix your car with a blindfold on— youwilldo more harm than good. Your freedom and your driver's license are at stake when you appear in court on a criminal matter and the consequences can be dire if yourepresent yourself. As the saying goes, "a lawyer that represents himself has a fool for aclient."

Can I win the ease even though I failed the breath test?

Yes! The prosecution has the burden to prove a number of facts before the breath test result is admissible in a trial. First there must be a legitimate reason to initiate and/or continue the investigation. If the officer lacks sufficient reasonable suspicion to initiatethe investigation, or probable cause to arrest, the case can be dismissed. The investigationshould include the proper administration of approved field coordination tests. If theofficer did not administer the battery of approved tests, or did not administer themaccording to approved standards, or did not grade the results fairly, or was not qualified to administer the tests, then there may be an insufficient basis to support the arrest.Moreover, if the officer was not qualified to administer the breath test, or did not followstandard operation procedures, or if the intoxilizer was not properly calibrated by theState Chemist, the breath test results may not be admissible,

I was not read my rights (Miranda warnings)

Contrary to popular belief, Miranda warnings are not required when someone is arrested.Miranda warnings are needed when an individual is in custody and is asked a question bypolice, which will incriminate the individual. Since DUI cases generally involve theofficer's observations and/or Blood Alcohol amount, Miranda is not typically given.However, if you answered questions that could incriminate you and Miranda was notgiven, you could file a Motion to Suppress to attempt to have your statements thrown outof court. The case will not be dismissed for lack of Miranda warnings, just theincriminating statement.

The pollee did not have a reason to stop me.

If the police did not have "reasonable suspicion" or probable cause for the stop, a Motionto Suppress Evidence should be filed in the Court of Common Pleas. At this hearing, thepolice must prove that the stop was valid. If the judge rules that the stop was unconstitutional, then all of the evidence of the case is suppressed and the case getsdismissed.

Irefused the breath or blood test, what happens next?

If the police officer notifies Deldot of the refusal, then you will lose your license for a minimum of one (1) year, unless you are able to establish that the officer did not haveprobable cause to support the arrest, or if you were not property advised as to the consequences of your refusal. Within 15 days of your arrest, you must request an administrative hearing in order to preserve your license to drive.

WillIlose my driver's licenseif Iget convicted ofDUI?

The law states that any conviction for a DUI shall result in at least a one (1) year licensesuspension. However, if you elect the First Offender's Program, you will be eligible for awork permit after a 90 day suspension if you have completed 16 hours of a substanceabuse course.

I was taking medication — canIstill be convicted of DUI?

Yes. The DUI law encompasses intoxication by alcohol, illegal drugs, prescriptionmedication, or a combination of alcohol and drugs. If a blood test reveals that you hadmedication in you system to such an amount that it could impair your driving, then youcan be charged with DUI.

I was charged after being stopped in a Roadblock.Is that legal?

ADUI charge stemming from a Roadblock stop can be defended in a number of ways.The police must prove that the Roadblock was located and operated according tostandards set by the Court. Moreover, the police are still held to constitutional standards in conducting the DUI investigation. If those standards are not met, the case can bedismissed,

ShouldItake the First Offender's Program

Every case is different and the decision on whether to elect the FOP depends on a numberof factors, including the strength of the case, and the potential penalty if you lose the trial. I will conduct a thorough investigate and explore all options available to you. We willdiscuss the FOP as one of the options. However, the FOP should not be elected until

other options have been explored and I have exhausted all other opportunities for a betterresolution of the case

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