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Frequently Asked Questions

Find Answers from Experienced Criminal Defense Attorneys

Ever wonder about the rules police must follow when conducting a search or arrest? Have you thought about your rights if you were arrested and questioned by the police? Below you’ll find answers to some of the most frequently asked questions regarding criminal law and procedure, straight from an experienced criminal defense attorney.

Do the police need a warrant to search or arrest me?

In most cases, the police cannot effect a valid arrest without a warrant. The 4th Amendment to the U.S. Constitution guarantees an individual’s right to be free of unreasonable searches and seizures from the government. This is normally accomplished by the warrant requirement. However, a warrantless search or seizure may be “reasonable” in certain emergency situations where a search or seizure may be necessary to ensure public safety or to preserve evidence.

Can the police search me or my house/car without consent?

No, the police may not search you, your house, or anything intimately connected to your person (including your car) unless they have a lawful reason to do so. The following are examples of “lawful” reasons to search a person and their things:

  • Valid Warrant. The police obtained a warrant supported by probable cause.
  • Consent. You gave the police consent to search you.
  • Emergency Situations. The police can conduct a warrantless search if necessary to protect against imminent threats to public safety, to prevent impending crimes, or to preserve easily destructible evidence.

What is “probable cause?”

Probable cause is required for a valid search or arrest. Probable cause is determined by a variety of factors, depending on the crime for which a police search or arrest was carried out. For example, probable cause in DUI cases can be determined based on your overall appearance, speech, and odor.

Do I need to answer questions from the police?

No, people are under no obligation to respond to police questioning. Even when you’ve been arrested, the 5th Amendment to the U.S. Constitution guarantees an individual’s right to be free from government-compelled self-incrimination. People can be required to identify and provide basic information about themselves, but there is no further duty to comply with questioning.

Do the police need to “read me my rights” before arresting me?

No. The police only need to advise a defendant about their rights to ensure that self-incriminating testimony is admissible at their trial. This requirement is also known as a “Miranda warning,” named after the U.S. Supreme Court case Miranda v. Arizona that established the rule. An officer’s failure to give you a Miranda warning is not relevant to the procedural validity of your arrest.

Can I change my mind after I agreed to answer police questioning?

Yes. You have the right to refuse to further questioning after you initially agreed to cooperate. You can assert your right to remain silent by informing the police of your intent to do so and requesting to have defense counsel present for further interrogations.

When should I take a plea bargain to resolve my case?

The advantages of plea bargaining can be seen at the preliminary hearing stage of your criminal prosecution. An early resolution has the benefit of quickly relieving stress, and keeping down costs for attorney’s fees. Whether or not a plea bargain is your best option depends on the circumstances of your case.

How can I beat a DUI charge?

You can beat a charge of driving under the influence (DUI) by demonstrating that your arrest was procedurally defective. This requires an inquiry into each step in the arrest process:

  • Did the police have a “reasonable articulable suspicion” to stop the car in the first place?
  • Did the police have “probable cause” to make an arrest?

Are field sobriety tests or preliminary breath tests valid?

Police use field sobriety tests (FSTs) and preliminary breath tests (PBTs) to build their case for probable cause. Some field tests are standardized and require specific instructions and results to be considered valid evidence against the accused. FSTs are ultimately considered to be subjective, and police officers routinely make mistakes on these tests.

My PBT reading blew the legal limit – am I guilty?

PBTs also have a specific set of protocols that can be challenged in court. Just because someone has submitted to an intoxilyzer reading over the legal limit does not mean they will be convicted of a crime.

What are the options for a first-time DUI offender?

Delaware has a program that allows first-time DUI offenders to get their charges dismissed for a first DUI offense. This requires you to initially plead guilty to your DUI charge. The judge then holds your plea in abeyance until you complete a DUI class. The first offender program will still count as a predicate offense should a subsequent arrest occur. Depending on the facts surrounding your arrest, it may also be possible to have your DUI further reduced or receive a direct dismissal should the case proceed to trial.

What are the consequences of subsequent DUI offenses in Delaware?

A conviction for a second offense that occurs within 10 years of your first offense may result in 60 days of incarceration, license suspension, probation, DUI class, and an increased fine. Convictions for a third and any subsequent DUI offense is a felony and will result in longer jail sentences. Other less severe options may be available depending on the circumstances of the case. It is important to note that after an arrest, a driver has only 15 days to sign up for an administrative hearing at the DMV or they will lose their license, regardless of the case outcome.

Does Delaware have an ignition interlock device requirement?

Delaware residents who have been convicted for a DUI will be required to use an IID. Typically, a driver is eligible to use the IID immediately on their first conviction. Otherwise, the IID is provided upon completing the jail sentence for subsequent convictions. The IID allows people to continue to drive during their license suspension period. Out-of-state drivers who are convicted of a DUI in Delaware are not eligible for the IID and they will be prohibited from driving in Delaware until their full suspension has elapsed.

What is the difference between the administrative process and the criminal process for a DUI in Delaware?

After your arrest, you will be given an arraignment date for the criminal charges and you will also be required to sign up for an administrative hearing with the Delaware DMV. Criminal proceedings have the authority to revoke of your driver’s license and impose jail time, fines, and probation. Conversely, administrative proceedings only have power over your driver’s license. Both hearings must be addressed to avoid losing your driving privileges.

What happens if I'm arrested for DUI while visiting Delaware?

If you are arrested for a DUI while visiting Delaware, your attorney may appear in your place for subsequent arraignment dates and your DMV hearing. Your presence in Delaware is not required until your trial date.

Do I have to come back to Delaware for my DMV hearing?

You do not need to personally attend your DMV hearing in Delaware if you have an attorney who can attend on your behalf. Remember, this hearing must be requested promptly – the DMV takes their deadlines very seriously.

How do I resolve a speeding violation in Delaware?

There are a lot of different strategies for dealing with a speeding ticket in Delaware. You may be required to fight your case in the Justice of the Peace Court in front of a non-lawyer judge, depending on the speed charged. The higher the charged speed, the higher the “points” are on your DMV record. This can lead to higher insurance costs for you. In that case, working out a deal may be the best option. Additionally, you may be eligible to resolve your case without a conviction if you maintained a clean driving record for the past 5 years.

What do I need to fight my speeding ticket in court?

If it is determined that your best option is, in fact, to fight the ticket, then information is the most important thing. Specifically, viewing the video of the alleged infraction and making sure all equipment was working properly. Please note that, unlike other jurisdictions, speeding violations cannot be amended to reflect non-moving violations in Delaware for the purpose of avoiding points on your DMV record.

I got a speeding ticket while visiting Delaware – what should I do?

If you don’t want to come back to Delaware to fight a speeding ticket, it may be in your best interest to attempt to resolve the case without having to return.

How do I fight a drug possession charge in Delaware?

When you are arrested for a drug possession charge in Delaware many factors are at play. The nature and severity of your case may depend on:

  • What kind of drugs are found;
  • Where the drugs are found; and
  • What reason led police to search and discover the drugs.

There may be issues regarding the original search, and establishing who had actual possession. It is also important to investigate the chain of custody over seized drugs, including whether the drugs were tested, and whether such testing was done correctly.

My child was arrested and charged for a crime – will this stay on their record?

Certain crimes may be expunged from a minor child’s criminal record. A minor charged with misdemeanor first offenses may use arbitration to keep their record clear. This involves placing the child on a 3-month probation under their parents’ supervision. Upon successfully completing the 3-month probation, the court dismisses the charge. Afterward, the child’s arrest may be expunged so they can put forth a clean record for their college applications.

Are there alternatives for first-time domestic violence offenders?

Delaware provides a domestic violence diversion program for first-time offenders. The program offers treatment and therapy as an alternative to other more conventional criminal penalties. Offenders who successfully complete the program have an opportunity to expunge the charge from their record.

What is “probation before judgement” (PBJ) or “deferred adjudication?”

Probation before judgment is a mechanism where a defendant can plead guilty to a charge but have their case dismissed, subject to certain conditions. The state must offer the option of PBJ to the defendant, who cannot have a conviction on their record for the last 5 years. The conditions put forth are negotiable and depend on the charge.

Do I need to register as a sex offender in Delaware?

Most sex offenses require registration, there are a select few that do not. The duration of the registration varies depending on the severity of your offense. The registry publicly discloses your personal information, such as your name, address, place of employment, etc.

Should I consult an experienced Delaware criminal defense lawyer for more information?

Yes. If you have been wrongfully arrested and charged with a crime, or are otherwise potentially facing criminal charges, then the Law Office of Michael R. Abram can help. Our attorneys have experience handling a broad range of cases, from traffic offenses to violent homicides.

Still have questions? Please contact us online or call (302) 273-1442 to schedule a free consultation with an experienced Delaware criminal defense attorney.

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