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Am I Required To Take a Breathylyzer Test?

DUI-1-200x300As one of the busiest and most experienced DUI attorney in Illinois, this may be one of the most common question I get whenever I speak to a client about their DUI case. The short answer to this question is no. But you should understand the consequences of refusing to submit to a breathalyzer, or chemical test, when you are placed under arrest for a DUI. Illinois is an implied consent state. This means that you give consent to a chemical test to determine the blood alcohol contact in your blood by merely driving a motor vehicle on a public highway or roadway in Illinois. So let’s discuss what happens if you are pulled over by a police officer and the police officer asks you to take a breathalyzer test, or provide a blood sample, to determine what the blood alcohol content (BAC) of your blood is and you refuse the request.

The Breathalyzer Test is the most common test used in Court to prove that your BAC was over the legal limit. In Illinois, if the BAC of your blood, was a .08 or above, you could be found guilty of a DUI. Another way of determining the BAC of your blood is a blood test. In Illinois, if a police officer has reasonable grounds to believe that you were operating a motor vehicle on the roadway while under the influence of alcohol or drugs, that police officer can request that you take a Breathalyzer or Blood test to determine what the BAC of your blood is. If you submit to a Breathalyzer Test, or a Blood Test, and the BAC was a .08 or above, in addition to facing a DUI criminal charge, the Illinois Secretary of State will suspend your license for 6 months because of the BAC reading of .08 or above. This is called the Statutory Summary Suspension. This is an automatic suspension of your license that happens once the arresting police officer notifies the Secretary of State of the Breathalyzer Test results or the Blood Test results. If you refuse to take a Breathalyzer Test or provide a blood sample, the Secretary of State will suspend your license for 1 year. The 6 month and 12 month Statutory Summary Suspensions will kick in 46 days after the date of your DUI arrest.

If your license is suspended due to a Statutory Summary Suspension, you may be allowed to have a Blood Alcohol Interlock Ignition Device (BAIID) installed on your vehicle which will allow you to drive during the 6 or 12 months of your Statutory Summary Suspension. However, in order to be eligible for a BAIID, you must not have had a DUI in the past five (5) years. In addition, a BAIID may be too expensive and too intrusive for some motorists. I recently represented a client who is an executive for a major corporation. He was concerned that if his employer found out about the DUI, he would lose his job. Since he would regularly go to lunch and dinner with his coworkers, he was concerned that they would find out about his DUI if he ever had to drive any of them to lunch or dinner. At the same time, he was required to drive his vehicle almost everyday as part of his job. For this client, the Statutory Summary Suspension was a major source of concern. I was able to solve this problem by getting the state to agree to Rescind the Statutory Summary Suspension as part of the ultimate resolution of his DUI case. However, if your license is suspended due to a Statutory Summary Suspension, the only way to legally operate a motor vehicle in Illinois is to have the BAIID installed in your vehicle. If you are caught driving without a BAIID during a Statutory Summary Suspension, you could be facing serious criminal consequences. Plus, if you are charged with driving you Statutory Summary Suspension without a BAIID, this could make it much more difficult for your lawyer to fight the underlined DUI case in Court.

You are allowed to challenge the Statutory Summary Suspension of your license by filing a Petition to Rescind the Statutory Summary Suspension in the Courthouse in the County in which the arrest took place. You can file the Petition to Rescind immediately but you must give notice to the prosecution. You only have 90 days after the date of the arrest to file the Petition to Rescind. In most counties, your lawyer can file the Petition to Rescind without your signature. Once the Petition to Rescind is filed, the clock starts ticking and you are entitled to a hearing within 30 days of the date that the Petition to Rescind was filed. However, if the first Court date is beyond the 30 days of the filing of the Petition to Rescind, you are entitled to a hearing on the first court date. Most DUI attorneys, including the author of this article, file a Petition to Rescind for almost every DUI case. There’s nothing to lose by filing a Petition to Rescind, and if the state is unable to give you with a hearing within the 30-day time limit, you may win the Petition to Rescind on that basis. While you can file a Petition to Rescind on your own, litigating a Petition to Rescind in court is a highly technical and specialized procedure which requires the services of a seasoned and experienced DUI attorney. The Petition to Rescind is a very important part of a DUI case .

James Dimeas, is a nationally-recognized, award-winning, DUI lawyer, with over-27 years of experience handling DUI cases in Chicago, Cook County, DuPage County, Kane County, and Lake County. Recently, James Dimeas was named a “Top 100 Criminal Defense Lawyer in the State of Illinois for the Year 2018 and 2019” by the American Society of Legal Advocates. James Dimeas was named a “Best DUI Attorney” and a “Best Criminal Defense Lawyer in Chicago” by Expertise. James Dimeas was named a “Top 100 Criminal Defense Trial Lawyer” by the National Trial Lawyers. The National Academy of Criminal Defense Attorneys awarded James Dimeas the “Top 10 Attorney Award for the State of Illinois.” James Dimeas is rated “Superb” by AVVO, the highest classification possible for any DUI lawyer in the United States. The American Institute of Criminal Law Attorneys recognized James Dimeas as a “10 Best Attorney for Client Satisfaction.” Attorney and Practice Magazine gave James Dimeas the “Top 10 Criminal Defense Attorney Award for Illinois.

If you are facing a DUI, you can contact James Dimeas anytime for a free and confidential consultation. You can speak to James Dimeas personally by calling him at 847-807-7405.

Additional Resources:

Illinois Statutory Summary Suspension Statute, 625 ILCS 5/11-501.1.

Additional Blogs:

What Rights Do You Have if You Are Charged With a DUI, by James G. Dimeas, Chicago Criminal Lawyer Blog, April 18, 2017.

What Happens if I Refuse to Take a Breathalyzer Test in Illinois?, by James G. Dimeas, Chicago Criminal Lawyer Blog, May 6, 2017 .