Delaware Has No Checkpoint Statute: What Governs a DUI Stop

Two Delaware statutes give officers power to stop a vehicle, and both require individualised cause. 11 Del. C. § 1902(a) permits a peace officer to stop a person abroad or in a public place whom the officer has reasonable ground to suspect is committing, has committed or is about to commit a crime. 21 Del. C. § 2144(a) permits the Secretary of Safety and Homeland Security, an authorized agent of the Department, or any police officer, "upon reasonable cause," to require the owner or operator of a vehicle to stop and submit the vehicle and its equipment to further inspection. Neither authorises a stop made without cause, and Delaware has enacted no third provision that does so for impaired driving.

That matters because Delaware did legislate a suspicionless, all-vehicles stop when it wanted one. 21 Del. C. § 4506(a)(1) allows any police officer, "having reason to believe that the weight of a vehicle and load is unlawful, or during the course of a routine check of all applicable vehicles," to weigh the vehicle on a portable or stationary scale or require it to be driven to a designated scale. Section 4506(c) then makes it unlawful to fail to obey traffic control devices erected to enforce the chapter, to fail to stop at areas selected for vehicle weighing operations, or to deviate from the route of travel to avoid State Police weighing operations. That is a checkpoint in everything but name, complete with an offence for detouring around it, and the General Assembly built it for truck weight rather than for alcohol.

What happens at a Delaware DUI stop is governed in detail. Section 2740(a) states the implied consent: any person who drives, operates or has actual physical control of a vehicle, off-highway vehicle or moped in Delaware is deemed to have consented to a chemical test of blood, breath and/or urine for alcohol or drugs, and the testing may be required when an officer has probable cause to believe the person was in violation of §§ 4177 and 4177L or § 2742. Section 2740(b) makes testing mandatory where the officer has probable cause and the driver was involved in a fatal accident, and adds a paperwork duty that cuts the other way: if the officer does not believe probable cause exists in a fatal accident, the officer must file a written report outlining the reasons.

The preliminary screening breath test is deliberately carved out. Section 2741(c) says the fact that an officer offered or required a preliminary screening test of the person's breath to estimate blood alcohol concentration, "at the scene of the stop or other initial encounter between the officer and the person," has no bearing on the implied consent provisions. Refusing that screening test is not an implied consent violation, and taking it does not satisfy the implied consent law either. So a driver waved into a Delaware checkpoint faces two different tests with two different rules: the roadside screener, which carries no automatic licence consequence, and the evidential chemical test at the station, which does. Section 2741(a) requires the person to be informed that refusal means revocation for at least 1 year where § 4177 is alleged, or at least 2 months where § 4177L, the under-21 provision, is alleged, and § 2741(b) permits a blood or urine test even after a breath test where there are reasonable grounds to believe impairment is by a drug not readily detected by breath.

One quirk of the printed Code is worth knowing. Section 2742 is printed twice, once marked "[Effective until fulfillment of the contingency in 81 Del. Laws, c. 155, § 2]" and once "[Effective upon fulfillment of the contingency in 81 Del. Laws, c. 155, § 2]," with the currently operative version printed first. Both versions carry the same revocation ladder in § 2742(b)(1): 1 year for a driver with no previous violation of § 4177 or of the refusal section within 5 years of the date of the charge, 18 months with one previous violation, and 24 months with two or more.

Refusing the evidential chemical test triggers an administrative revocation rather than a criminal charge. Under § 2742(b)(1) the Secretary revokes on the officer's certification that probable cause existed and that the driver refused after being told of the penalty, for 1 year, 18 months or 24 months depending on prior violations within 5 years; § 2742(b)(2) sets 2 months and up for a § 4177L allegation, and 21 Del. § 2743 confirms those durations run from the effective date of revocation. Section 2743(c) bars reissue of a licence until the person has completed a course under § 4177D, paid all fees on the Secretary's schedule, and passed a favourable character investigation by the Division of Motor Vehicles, and § 2743(g) lets a first offender apply again after at least 4 months from ignition interlock installation.

Appeal rights are narrow: 21 Del. § 2744 makes the Secretary's decision final and not subject to judicial review unless the Secretary rules against the person at a hearing the person requested, in which case an appeal lies to the Court of Common Pleas, and the appeal does not stay the revocation. Refusal is not cost-free at trial either, because 21 Del. § 2749 allows the court to admit evidence that the person refused a chemical test. Section 2745 gives a person who did submit the right to the test result on request unless they have pleaded guilty.

On the weight-enforcement side, failing to stop at a weighing operation or detouring to avoid one is punished under 21 Del. § 4508(a): $100 to $500 or up to 30 days for a first offence, and $400 to $2,000 or up to 60 days for a subsequent like offence within 24 months.