Implied consent requires drivers who receive Delaware licenses to submit to breath or blood tests if they are stopped for suspected drunken driving or they lose their license for a year. Similar laws exist in the other 49 states, said Anne Russell, spokeswoman for the national office of Mothers Against Drunk Driving (MADD).
Defense attorneys in Delaware have been advising their clients to refuse breath or blood tests, because first offenders who refuse can plead guilty under a special program that gives them back their licenses in three to six months, bypassing the one-year suspension, Spence said.
Daniel Fleming, a former state prosecutor who specialized in cases of driving under the influence (DUI), now defends people charged with drunken driving.
Fleming said the loophole "made me angry as a prosecutor (but) I think it's great as a defense attorney."
He explained how the loophole works.
A driver refuses the breath or blood alcohol test, then pleads guilty under the state's First Offenders Program, he said.
If approved for participation, the driver can apply 90 days after conviction for - and often receive - a license to drive to and from work. After another 90 days, the driver frequently can apply for and regain full driving privileges, Fleming said.
The driver pays a $125 relicensing fee and pays either $100 to attend 16 hours of education about drunken-driving issues or - if needed - $540 for alcoholism counseling. All traces of a drunken-driving arrest are erased from the criminal records of successful first offender candidates. The Department of Motor Vehicles, however, keeps track in case of a second offense.
To qualify for the First Offender Program, a driver must be carrying a valid driver's license at arrest time, said Theresa delTufo, a statistician for the Delaware Department of Public Highway Safety. The driver must have no chemical evidence of blood-alcohol content over 0.2 percent, - Delaware drivers are considered legally drunk at 0.1 percent - no prior drunken-driving convictions and no more than three moving violations in the last two years, she said.
Wilmington Mayor Daniel S. Frawley was one of those who threaded the implied-consent loophole.
Frawley refused a breath test after a drunken-driving arrest on Oct. 25, then pleaded guilty under the First Offender Program. His attorney, Joseph Hurley said he expected Frawley to have his full driving privileges returned within five months and to have no criminal record of the arrest.
Carver said a revised law to close the loophole was being drafted by a subcommittee of the Governor's Highway Safety Task Force for the legislature's January session. The revision would apply the one-year penalty for refusing breath or blood tests to all drivers, including first offenders, said Carver, who heads the subcommittee. It also will stiffen penalties for those who drive while under drunken-driving-related suspensions, he said.
In the current and the revised versions of the implied consent law, drivers with one-year suspensions can apply for limited licenses after six months. But judges do not have to grant their requests, Carver said.
Hurley criticized the implied consent law for being too harsh on people who must drive for a living. The 90-day suspension "creates lawbreakers," people who drive anyway without licenses, for work or medical reasons, he said.
Fleming said drivers who have two or three drinks over several hours probably shouldn't refuse the breath test if stopped, because they might pass the test. They could risk losing their licenses by refusing, he said.
"But if you have had maybe five or six beers, then it's a little more questionable," Fleming said. "I'd say no, refuse it. It's very difficult without the chemical test (for the state) to prove DUI."
The state, though, has other ways of learning who is drunk or sober.
By law, police can take a driver who refuses the breath test to a hospital and forcibly have blood drawn for tests, so long as police have not informed the driver of the implied consent law. Police are not required to inform a motorist about the law.
New Castle County police officers sometimes opt for blood tests instead of breath tests, particulary with second-time offenders and drivers who cause injuries, said Lt. William Esterling, a police spokesman.
Wilmington police usually read the implied consent law to drivers who refuse the breath test, letting the state motor vehicle officials handle their license suspensions, said Sgt. Richard Andress, a spokesman for the Wilmington police.
By comparison, Pennsylvania has some of the toughest drunken-driving laws in the country, said Pennsylvania Rep. Jon Fox (R., Abington), who helped sponsor the legislation and is chairman of the bipartisan Legislative Coalition Against Drug and Alcohol Abuse.
Refusal of the breath test in Pennsylvania brings an automatic suspension of six months or a year, depending on the discretion of the hearing officer, said Fox, and there are no loopholes. New Jersey's drunken-driving laws are somewhat less strict.
Drivers who refuse breath tests lose their licenses only upon conviction, said H. Arthur Smith 3d, spokesman for the New Jersey Department of Motor Vehicles. There is no automatic suspension for refusing the breath test, he said.
Edward Steiner, Delaware's commissioner of public safety, conceded that some lawyers might argue that a breath or blood test is an unconstitutional body search. "I'll let the constitutional lawyers worry about that," he said. "This is not criminal stuff. . . . A driver's license is a privilege and not a right."