Delaware First Offender DUI Program (FOP)

The First Offender Election in lieu of trial, commonly referred to as "FOP," is a Delaware program designed for first time DUI offenders. If you elect the program you will be placed on probation without a judgment of guilt. However, FOP will appear on your motor vehicle record and count as a first offense DUI for purposes of calculating subsequent DUI's. Delaware law does not permit you to expunge FOP from your record.

You are NOT eligible for FOP if you:

• Had a previous DUI or Reckless Driving Alcohol Related;
• Had 3 or more moving violations within the past 2 years;
• Injured anyone else in an accident during your DUI;
• Had a BAC over a .15% during your DUI;
• Drove without a license or had a suspended or revoked license;
• Had a child under age 17 as a passenger in the car.

If you meet one of the disqualifying criteria, the Attorney General's Office does have the ability to waive the eligibility requirements and let you into the program. Only first offense DUIs are eligible.

• Probation for a period of 1 year (probation is typically discharged upon completion of the DUI course)

• Pay the costs of prosecution ($250)

• Submit to a Drug and Alcohol Evaluation ($100)

• Attend DUI courses AND/OR a rehabilitation program (ranges $250-$820)

• Waive your right to an administrative hearing to challenge your license suspension at a motor vehicle hearing

• Waive speedy trial rights

• In-state drivers: have an ignition interlock device installed on your vehicle for 4 months

• Out-of-state drivers: 1 year license suspension in the State of Delaware; not suspended in your home state unless notified by your home state.

If you are a Delaware driver, instead of a doing a 1 year license suspension you can have an ignition interlock device installed on your vehicle. You will be required to drive with this device for 4 months. You cannot get your license back until you complete the 4 month period. The device costs about $75 per month and between $75 and $125 to install. Out-of-state drivers are not eligible for ignition interlock and will be suspended in Delaware for a period of 1 year. Out-of-state drivers are not suspended in their home state unless notified by their home state. The problem with ignition interlock is that there could be up to a 2 week waiting period to get the device installed once your suspension starts. That means you could be suspended for up to 2 weeks.

If placed in FOP, you will be sent for a drug and alcohol evaluation at the Delaware Evaluation and Referral Program (SODAT) located at 625 North Orange Street, Wilmington, DE 19801. The telephone number is 302.656.2810. The cost for the evaluation is $100. A $35 fee will be assessed for missed appointments. At this appointment you will have about a 90 minute evaluation completed to see if you have a drug and alcohol problem. Questions will be asked about your personal drinking habits and drug and alcohol history. You will get a letter in 5-10 days referring you to DUI classes and/or outpatient treatment if needed. This evaluation determines whether you get the easy DUI course ($250) or the treatment rehabilitation course ($820).

Depending on the circumstances of your case and your drug and alcohol history you will be referred to education classes (DUI classes) and/or outpatient treatment. The education classes (DUI courses) are conducted through PACE. The DUI course is a 16 hour program. The cost is $250. PACE conducts the courses in New Castle County and is located at 5171 Westwood Mill Drive, Wilmington, DE 19808. The phone number is 302.999.9812. At the classes, you will do things like watch videos on alcoholism, have group discussion, and attend an AA meeting. If you meet certain criteria, you will be referred for outpatient treatment in addition to or in lieu of DUI classes. For instance, if your BAC is over a .16% or you have a prior drug or alcohol related arrest you will likely be referred for treatment. In New Castle County there are two outpatient programs: Connections 1423 Kirkwood Highway and Polly Drummond Road, Plaza Suites 3004 and 3005, Newark, DE 19711 (866) 477-5345 or Open Door 254 East Main Street, Newark, DE 19711 (877) 860-6955. The outpatient treatment programs are expensive unless you meet the requirements for a hardship waiver. For example, the connections program is $820 which can be divided into 12 payments. Many people get referred for treatment.

If you are a Delaware resident and charged with a first offense DUI my advice is usually to avoid the FOP program and its penalties. If you have a valid legal defense to your DUI case, FOP may be unnecessary. You may get a better plea deal such as reckless driving - alcohol related or be acquitted by a judge. You need an experienced DUI lawyer that can recognize the many defenses to a DUI prosecution. DUI law is complex in Delaware. If your lawyer misses one of these vital issues you may be missing out on a big opportunity to win your case.

The down sides to the FOP are 1) it counts as a first offense DUI; 2) you will be forced to drive on an ignition interlock license and pay the costs for the device; 3) you cannot get it expunged and 4) if you fail to successfully complete the program, such as the alcohol classes or get in trouble in the interim you will automatically be found guilty of a first offense DUI. There are better pleas than FOP for a first offender in Delaware.

Contact Jason Antoine, Delaware DUI Lawyer at 302-482-4802 if you are charged with a first offense DUI and are considering the Delaware first offender program. You may be able to beat your DUI case or there may be a better alternative to the FOP program My office offers a free consultation on all DUI cases.