Illinois has some very strict laws, rules, and regulations involving DUI’s. I frequently get questions from clients asking about whether they should or should not take a breathalyzer when they are requested to by a police officer. There is no simple yes or no answer to that question. Whether someone who has been stopped for a DUI should submit to a breathalyzer test or not is a very complicated question that depends on each case and the specific facts surrounding each case. All I can do is explain what the legal consequences of a refusal to submit to a breathalyzer test would be and what could happen if you take a breathalyzer test and you fail that test.
Let’s talk about what a breathalyzer test is. The only way to test how much alcohol is in somebody’s blood is with a blood test. A breathalyzer test measures the amount of alcohol in your breath. That reading gives a very accurate estimate of how much alcohol is in your blood. A breathalyzer test is performed by blowing into a machine which registers a reading. The results from that machine have been accepted in court as reliable and admissible evidence in DUI cases throughout Illinois.
Under Illinois Law, driving is a privilege not a right. Therefore, when you are given a driver’s license in Illinois you give the police the implied consent to ask you to submit to a breathalyzer test when you are requested to do so by a police officer. You can refuse to submit to a breathalyzer test when requested to take one but the consequences are very severe. Under Illinois law, if you refuse to submit to a breathalyzer test your license will be suspended for one year. If you are taken to a hospital the police can force the hospital to draw your blood to measure the amount of alcohol in your blood. That’s part of the implied consent that the law implies that you gave the police when you were issued a driver’s license in Illinois.
Let’s talk a little bit about what a refusal to submit to a breathalyzer test means. Refusal to submit to a breathalyzer test is more than simply saying “no” to a police officer when asked to take a breathalyzer test. You could agree to take a breathalyzer test and still be punished for refusing to take a breathalyzer test. How does that work? This could happen if you attempt to take a breathalyzer test but are unsuccessful in providing an adequate breath sample. Before you take the test, the police officer will describe to you in detail exactly what you need to do to provide an adequate breath sample. It’s imperative that you listen very carefully to what the police officer is telling you and make sure that you do exactly as instructed. If you blow into the machine and you don’t blow hard enough or long enough the machine will fail to register a result. The police officer will ask you once again to blow into the machine and if the same thing happens, the officer may stop the test and determine that you failed to submit to a test. The reasoning behind this is that the law wants to punish people who are intentionally trying to avoid providing a breath sample.
If you submit to a breathalyzer test and the test registers a result of .08 or above, and it’s your first DUI, your license will be suspended for 6 months starting 46 days after your DUI arrest. The only way to stop your license from being suspended is if you file, and win, a Petition to Rescind the Statutory Summary Suspension. You can file the Petition as soon as possible after your arrest but you cannot file it more than 90 days after your DUI arrest. Pursuing a Petition to Rescind Statutory Summary Suspension is a complicated process that requires the services of an experienced DUI lawyer. My recommendation is that you consult with an experienced DUI lawyer as soon as possible after your DUI arrest. The sooner you file a Petition to Rescind the Statutory Summary Suspension, the better your chances are of winning the Petition and avoid having your driver’s license suspended.
Some people believe that if they refuse to submit to a breathalyzer test they will win their DUI case and that the case will be dismissed. That could be a false expectation. While it’s safe to say that the prosecution will have a more difficult time proving the DUI charges in court without the results from a breathalyzer test, it does not not mean that the absence of breathalyzer test results means that the prosecution will not be able to prove the case. A DUI can be proven in court in many ways. A DUI can be proven by the testimony of the police officer, the testimony of witnesses, the results of a field sobriety test, and squad car videos which could indicate that you were under the influence of alcohol. Any one of those factors, or a combination of some, or all them, can be enough to prove you guilty of a DUI. I’ve had cases where clients admitted to the police officer at the scene that they have been drinking all night and that they were in no condition to be driving. But there’s no doubt that if the police do not have a breathalyzer test it usually means that it will be a little more difficult for the prosecution to prove a DUI case in court.
So if you refuse to submit to a breathalyzer test under the mistaken belief that the state will not be able to prove the DUI in Court, and you were wrong and were convicted of the DUI, you will also have to deal with a 12-month suspension of your driver’s license. You have no way of knowing if the state will be able to prove a DUI when you are asked to take a breathalyzer test. It’s simply too early to know.
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 being facing with a DUI charges, you can contact James Dimeas anytime for a free and confidential consultation. You can always talk to James Dimeas personally by calling him at 847-807-7405.
More Blog Posts:
What Rights Do You Have if you are Charged With a DUI? April 18, 2017.