Delaware DMV Hearings

In Delaware, if you get arrested for a DUI there will be two separate proceedings against you. A criminal hearing in the Delaware criminal courts and civil administrative hearing at the Division of Motor Vehicle (DMV). At the time you are arrested for a Delaware DUI the police officer will take your plastic driver's license and hand you a piece of paper that serves as a temporary driver's license for 15 days. You have 15 days to a request a hearing with the DMV. IT IS IMPERATIVE THAT YOU GET TO THE DMV AND REQUEST A HEARING WITHIN THE 15 DAYS. If you do not get to the DMV, your license will be suspended per the Delaware DUI statute and you will not have the opportunity to contest the license suspension or license suspension penalties at a motor vehicle hearing. The time period to get to DMV is 15 days, NOT 15 business days. You can request a hearing online, via phone or in person at the DMV. Even if you are an out-of-state driver you should request this hearing, otherwise your operating privileges will be suspended in Delaware. When requesting a hearing I recommend that you appear at the DMV in person so you can get your temporary license right then and there. If you do request a hearing, you will be given a temporary driver's license that is good for three months. DMV hearings will typically be scheduled six weeks out. If your hearing is not held within three months you can go back to DMV to get the temporary license extended.

It is very important to request the DMV hearing because, the police officer typically will not show up to the hearing. If the police officer does not show up, your driver's license will be returned to you by the DMV hearing officer that day. If you are later convicted of the DUI, you will have to turn your license back in to DMV. It can be confusing but again, there are two separate tracks for the government to suspend your driver's license in Delaware: civil (DMV hearing) and criminal (the DUI conviction). Most of the time the police officers do not appear for the DMV hearing so you will win the civil track (DMV hearing) and have your license returned.

If the police officer testifies against you at the hearing and is successful, the penalties are as follows:

• 1st offense DUI - 3 months
• 2nd offense DUI within 5 years - 1 year
• 3rd offense DUI within 5 years - 18 months

If you refused the breath or blood test the penalties are enhanced. The penalties for a refusal under Delaware's implied consent law are:

• 1st offense DUI - 1 year
• 2nd offense DUI within 5 years - 18 months
• 3rd offense DUI within 5 years - 24 months

DMV hearings occur at the DMV in a small room off to the side. Check your hearing notice for which DMV location you must report. The parties that will be present at the hearing include the DMV hearing officer, possibly the police officer that arrested you, and your attorney. It can be important to have an attorney. In the rare case the police officer appears, your attorney could try to convince them to withdraw the hearing. I have had police officers withdraw the civil hearing on several occasions. My client's license was returned that day. If you hire an attorney, you are not required appear at the DMV hearing. Your attorney can appear in your absence. However, I recommend that my clients do show up so they can get their license back that day versus having it mailed.

Your attorney does not have the right to receive discovery (police reports) in advance of the hearing. The police officer will typically hand the reports over the day of the hearing. The hearings are scheduled in 15 minute blocks. Therefore, if the police officer is more than 15 minutes late the case will be dismissed against you and you will get your license back on the spot. The DMV hearing officer will likely state that the DMV has held in your favor, your license is being returned and the police have 24 hours to report that they were on an emergency call to reinstate the hearing. It is highly unlikely the police will report that they were on an emergency call. This has not happened yet in my career.

When the hearing starts, the hearing officer will recite the DUI penalty statute and the purpose of the hearing. At that point the police officer will testify and your attorney will have the opportunity to cross-examine the police officer. The hearing officer will determine if the officer established probable cause that you were driving while under the influence. The burden of proof on the prosecution is a preponderance of the evidence which is a lower standard than the standard in a criminal court which is beyond a reasonable doubt. If your case involves a refusal to submit to a breathalyzer or other chemical test, the hearing officer will also be determining if there was a refusal of the test and if the police officer read the implied consent form to you. You, the client, will typically NOT testify at a DMV hearing. Anything you say can be used against you in a criminal proceeding.

Once the hearing concludes, the hearing officer will not make a ruling on the spot. A decision will be mailed out in two to three weeks after the hearing.

If you lose the hearing, you do have the right to appeal to the Court of Common Pleas. When you appeal you are entitled to get a stay of your license suspension for nine months. A stay means you will be able to drive for another nine months pending the outcome of the appeal.

Contact our Wilmington office for a free consultation at 302-482-4802 to discuss your DMV license suspension in detail.