A DUI is a very serious offense, but it is also a very technical one.  This is why the vast majority of individuals arrested for a DUI seek the advice of an attorney before moving forward.  While this is not meant to be legal advice, we at Gonser and Gonser want you to understand how DUI prosecutions work, so that you may make the best decision possible going forward.

In order to successfully convict a person of DUI, a certain number of things must be established.  First, it must be shown that the police officer who arrested you had a constitutionally valid reason to come in contact with you.  This is called having “reasonable articulable suspicion.”  Generally, this suspicion takes the form of a traffic offense.  Perhaps the officer observed you run a stop sign or turn the wrong way down a one-way street.  Or perhaps the officer received an advisory to be-on-the-lookout (known as a “BOLO”) for a possible drunk driver, saw your car matching the description in the BOLO, and observed you weaving all over the road.  Or maybe you were in an accident before the officer arrived.  The point is, while it doesn’t take much, it must be shown that the police officer possessed a reasonable degree of suspicion for coming in contact with you in the first place.

Next, it must be shown that the police officer possessed a sufficient amount of evidence to believe that you were driving under the influence when the choice was made to arrest you.  This is what is known as having “probable cause.”  This is where those infamous roadside tests come into play.  The tests are crafted by the National Highway Traffic Safety Administration (“NHTSA”) and, not surprisingly, are designed to be indicators of whether a person is under the influence.  Two important things to note about the NHTSA tests, however.  First, your performance on the tests is NOT mandatory.  It is a very common misunderstanding that a person must comply with a police officer’s request to perform roadside testing, but that is not true.  You may, politely, refuse the officer’s request, and that should be the end of the matter.  Now, keep in mind that at the point you refuse, more than likely you will be arrested.  However, later down the road when you’re looking at the evidence in your case, you will be pleased that no field tests were performed.

Second point about the NHTSA tests, it is important to note that they are mere “indicators” of whether a person is under the influence.  Standing alone, the tests are proof of nothing.  They must be considered in the context of the whole situation.  Your performance on the walk-and-turn, for example, doesn’t mean much if you just had a hip replaced and the officer neither knew nor asked you about that fact.

Another test that most people are familiar with is the portable breath test, or the “PBT.”  This is the device that, if you so chose, you would blow into on the side of the road and it would yield a reading of your blood alcohol content, or “BAC.”  There are some very important things to keep in mind about this test, however.  First, the reading that is obtained is NEVER admissible in court.  All that may be revealed about it is whether you passed, as in your BAC was below a .08, or whether you failed, as in your BAC was at or above a .08.  Second, like all the other field tests, your reading on the PBT is proof of nothing by itself.  Rather, it is but one piece of information that goes into the overall determination of whether there was probable cause to arrest you.  Lastly, and most importantly, it is sometimes the case that the police officer administered the test to you incorrectly.  If that happens, there is a very good argument that the test in its entirety should not be considered at all.

The third and final piece of the DUI puzzle is proving, beyond a reasonable doubt, that you were driving under the influence.  The two most common ways of doing this are to admit evidence of 1) your BAC obtained from either the intoxilyzer (the machine you blew into at the police station) or from a sample of your blood (see note below), or 2) your “impairment.”  While the term “impairment” doesn’t have a specific definition, think of the old adage that everyone knows a drunk when they see one.  Imagine the police officer has video footage of you stumbling out of your car, swaying back and forth, rubbing your eyes repeatedly, talking gibberish, and then bending over and vomiting.  That would be a way for the government to prove that you were under the influence by way of “impairment,” without having to go through the technicalities of admitting your BAC into evidence.

Regarding blood samples, one of the most common questions regarding DUIs is what may the government obtain from you even if you refuse everything.  The short answer is a sample of your blood by way of a search warrant.  If a police officer wishes to obtain a sample of your blood, more than likely you will be asked to consent to a blood draw.  DO NOT SIGN the form that is put in front you.  By signing the consent form, you are granting the police officer permission to obtain your sample.  It is in your best interest to force the police officer to apply to a judge for a search warrant for your blood.  If that search warrant is granted, you have no choice but to submit, but you benefit much more from requiring the officer to go by way of warrant rather than by your consent.

The point of all of this is that DUI litigation is very, very complex.  Title 21, Section 4177 of the Delaware Code is Delaware’s DUI statute, and you could teach an entire academic course on its twists, turns, and nuances.  We here at Gonser and Gonser understand that this is a very difficult time for you.  Unfortunately, you have found yourself in a situation that is all too common, but can have very serious consequences.  At Gonser and Gonser, you will work with an attorney who understands these cases and has experience dealing with their multiple complexities.  At Gonser and Gonser, you will be good hands.