Have A Question? Search This Site:
Clarifying DUI Arrests Without Breath Test Failure in Delaware
When people think of DUI arrests, they often picture someone blowing into a breathalyzer and failing the test. But in Delaware, and many other states, the process is not always that straightforward. A common question arises: can a person still be arrested for DUI even if their breath test result is under the legal limit? The answer, in Delaware, is yes.
Delaware law allows for DUI arrests based on a range of observations and tests—not just breathalyzer results. Officers are trained to evaluate signs of impairment using multiple tools, including driving behavior, field sobriety tests, and physical indicators like slurred speech or the smell of alcohol. Breath test results are just one piece of the overall picture.
Importantly, Delaware’s DUI statute focuses on whether a driver is impaired to the point that they cannot safely operate a vehicle—not simply whether their BAC is above 0.08%. This means a person can technically be under the legal limit but still arrested if other signs of impairment are present. For example, if someone shows signs of drug use, fatigue, or alcohol-related confusion, they may be taken into custody even without failing a breath test.
This post breaks down how DUI arrests work in Delaware when a breath test isn’t the determining factor. It outlines what other signs officers look for, how field tests are used, and what legal standards apply in these situations. The goal is to explain—not advise—how the process works when alcohol level alone doesn’t tell the whole story.
How Delaware Defines DUI Without Requiring a Failed Breath Test
In Delaware, DUI (Driving Under the Influence) doesn’t always depend on a specific BAC number. The law allows officers to arrest a driver if they appear to be impaired in a way that affects their ability to drive safely—regardless of whether their BAC is 0.08% or not.
The statute uses language that includes impairment due to alcohol, drugs (legal or illegal), or a combination of both. That means if someone is under the influence of prescription medication, marijuana, or another substance that affects their judgment or coordination, they may be considered impaired even with no alcohol in their system.
Delaware law emphasizes impairment, not just chemical readings. If a person’s mental or physical faculties appear to be compromised while operating a vehicle, that may be enough for an officer to act. Observations such as erratic driving, confusion during questioning, or stumbling during a field sobriety test can all contribute to an arrest decision.
While BAC provides measurable data, it’s not the only route to a DUI charge in Delaware. This distinction allows law enforcement to take action in situations where someone is clearly unsafe to drive, even if they haven’t failed a breath test.
Observable Signs That May Lead to DUI Arrest Without a High BAC
When a breath test result is below 0.08%, officers still rely on what they see and hear during a traffic stop to make decisions. Delaware officers are trained to detect impairment through a variety of physical and behavioral signs.
Common observable clues include:
- Bloodshot or watery eyes
- Slurred or slow speech
- Unusual or unsteady movements
- Confusion or slow response to questions
- Strong smell of alcohol or drugs
- Open containers or drug paraphernalia in the vehicle
These signs, taken together, can form the foundation of probable cause. If the officer believes the driver is not safe to operate the vehicle based on these observations, an arrest may follow—even if the breathalyzer does not show a high BAC.
In some cases, the driver might admit to using prescription drugs or having consumed alcohol earlier in the day. While honesty is not discouraged, such admissions—paired with any physical signs of impairment—can contribute to an officer’s decision to make an arrest.
This approach allows law enforcement to intervene before a situation becomes dangerous, focusing on the total context of the stop rather than one number on a device.
The Role of Field Sobriety Tests in Non-BAC DUI Arrests
Field sobriety tests (FSTs) play a major role in DUI investigations where the breath test doesn’t clearly show intoxication. These physical tests are designed to assess balance, coordination, and the ability to follow directions—all of which can be affected by alcohol or drugs.
The three standardized tests used in Delaware are:
- Horizontal Gaze Nystagmus (HGN): Checks for involuntary eye movements.
- Walk-and-Turn: Assesses balance, ability to follow instructions, and coordination.
- One-Leg Stand: Evaluates physical control and focus.
Officers look for specific “clues” or indicators during these tests. A driver doesn’t need to fail all three to raise concern. In fact, showing multiple signs of difficulty in just one or two tests may be enough to trigger an arrest when paired with other observations.
These tests are especially useful when impairment is suspected to come from something other than alcohol, such as drugs or fatigue. A person might blow a 0.00% on a breath test but still show clear signs of being under the influence during FSTs.
Participation in these tests is voluntary in Delaware, but refusal can still impact how the officer evaluates the situation. The results may be used as supporting evidence if an arrest is made.
Arrests Based on Drug Impairment or Combination Effects
Not all DUI arrests in Delaware involve alcohol. Drivers under the influence of drugs—whether prescription, over-the-counter, or illegal—can also be charged with DUI. In these cases, a breathalyzer may show a low or zero BAC, but other evidence can lead to an arrest.
Some substances, like marijuana, opioids, or anxiety medications, may affect reaction time, coordination, or decision-making. If a person is visibly impaired and admits to using these substances before driving, that admission—combined with behavior—can lead to arrest.
Delaware law also accounts for combination impairment. This means a small amount of alcohol combined with a drug that has similar effects may still be enough to impair driving. Even if neither substance alone would typically trigger a DUI charge, the combined impact can meet the standard for impairment.
Officers trained as Drug Recognition Experts (DREs) may be called to the scene or consulted after an arrest to help identify signs of drug use. Blood or urine testing may be conducted at a medical facility following the arrest to determine what substances are in the driver’s system.
These procedures demonstrate that Delaware treats drug-related impairment with the same seriousness as alcohol-related cases, even in the absence of a failed breath test.
Understanding Probable Cause and Officer Judgment
Probable cause is the key legal standard behind any DUI arrest in Delaware. It means that based on available facts, a reasonable person would believe the driver is under the influence. Importantly, probable cause doesn’t require a failed breath test.
Officers build probable cause using a combination of:
- Driving behavior observed before the stop
- Visual and verbal cues during the stop
- Field sobriety test results
- Statements or admissions from the driver
- Presence of drugs or alcohol in the vehicle
These elements allow the officer to make a judgment call. The law gives them the discretion to act if they believe the driver poses a safety risk due to impairment. Breathalyzer results can support this judgment, but they are not mandatory for a lawful arrest.
This flexible standard allows officers to act quickly in real-world situations, even when impairment isn’t easy to measure. It also helps prevent situations where someone may legally pass a breath test but still be too impaired to drive safely.
What Happens After a DUI Arrest Without a Failed Breath Test?
Being arrested for DUI in Delaware—even without a failed breath test—initiates a legal process that includes both criminal and administrative steps. The arrest itself is based on probable cause and is followed by further testing, such as blood or urine analysis, especially in drug-related cases.
After the arrest:
- The driver is transported to a station or medical facility
- Additional testing may be conducted (blood, urine)
- The driver may be released or held depending on circumstances
- A court date is scheduled
- The DMV may initiate license suspension procedures
Even if the chemical test later shows low or no alcohol, the case may proceed based on the officer’s report and any other supporting evidence. The arrest becomes part of the driver’s record, and additional consequences—like license suspension—may still apply through administrative channels.
It’s also worth noting that penalties may vary depending on whether the offense is a first-time arrest, if minors were present in the vehicle, or if there was an accident involved. Each situation is evaluated individually within Delaware’s DUI framework.
Frequently Asked Questions About DUI Arrests Without Failing a Breath Test
Can you be arrested for DUI with a BAC under 0.08% in Delaware?
Yes. Delaware law allows DUI arrests based on observed impairment, even if the BAC is below the legal limit.
What if my breath test is 0.00% but I still get arrested?
You can still be arrested if the officer suspects drug impairment or observes behaviors that suggest you’re not fit to drive.
Does refusing a breath or blood test protect you from arrest?
No. Refusal can lead to automatic license suspension and does not prevent arrest if other signs of impairment are present.
Can prescription drugs lead to a DUI arrest?
Yes. Even legally prescribed medication can impair driving and result in a DUI charge if it affects your ability to drive safely.
Will the DUI charge be dropped if the test results are low?
Not necessarily. The case may still proceed based on officer observations, field sobriety test results, and other evidence.
Conclusion
Delaware law makes it clear that DUI arrests don’t hinge solely on a failed breath test. Officers are trained to look at the full picture, including driving behavior, physical signs of impairment, and test performance. Even if a driver’s BAC is below the legal limit—or zero—other factors can lead to arrest under the state’s broad definition of impaired driving.
Understanding this process helps clarify why DUI enforcement in Delaware extends beyond the breathalyzer. It’s designed to prioritize safety by addressing all forms of impairment, not just those that show up on a digital readout.
To understand the legal foundation behind these procedures, visit the How DUI Laws Work page. For more details on arrest triggers during traffic stops, see the What Triggers a DUI Arrest During a Traffic Stop guide.