Should You Take a Breath Test For a DUI?

Updated on July 21, 2021
Updated: May 23, 2022

If you're unsure about the laws surrounding breathalyzer testing in Illinois, you aren't alone. Many people know that they’ve “impliedly consented” to breathalyzer and blood alcohol content testing by driving within Illinois, but also know they can typically refuse chemical testing. It’s not illegal to refuse a breath or blood test, but there are criminal penalties for refusal.

These cut-throat contradictions can leave drivers with only the slightest understanding of the consent law. However, every driver should know both his or her rights and decide if they should take a breath test for a DUI.

In Illinois, anyone who drives a motor vehicle on public roads is said to have consented to chemical testing for alcohol, intoxicants, and other drugs. Thus, by driving in Illinois, you consent to chemical tests.

However, many drivers don't know that the implied consent comes into play only when a law enforcement officer has arrested you for driving under the influence of alcohol or drugs. And, the police officer must have probable cause for the drunk driving arrest. A driver who has not been arrested for drunk driving can refuse chemical testing and isn't subject to license suspension because of the refusal. Once the statutory summary suspension is ordered, not being under arrest and lack of probable cause are both among the few defense strategies allowed at a hearing on the statutory summary suspension.

Should I Refuse a Breathalyzer Test in Illinois?

Most Chicago DUI criminal defense lawyers would probably say: “don't consent to take a breath test under any circumstances!” Although recommending that you always refuse to take breathalyzer tests may generate favorable outcomes in certain cases, it's essential to note that every situation is unique and without knowing the specific facts, it's not that simple.

Fundamentally, you're providing the law enforcement officers and prosecutor evidence they can use against you in court if you take the breathalyzer test. Your DUI criminal defense attorney may have more leverage in court if the prosecution doesn't have this key piece of evidence. Alternatively, a breath test result below the legal alcohol limit is more beneficial than a refusal to take the breath test. Thus, the best answer here isn't a “yes” or “no”– the right answer depends on the circumstance. 

Often, the police officer will attempt to persuade you to take a breathalyzer test based on the threat of a longer license suspension for refusing. Under the Illinois Summary Suspension law, if you refuse to take the breathalyzer test, you're subject to a mandatory 1-year license suspension, especially if you're a first-time DUI offender. However, if you take the breath test and the result is 0.08 or more, you'll be subject to a mandatory 6-month license suspension.

Many DUI criminal defense attorneys would suggest that the trade-off of a longer license suspension is worth lessening the odds of a DUI conviction in court. Further, there are still ways to challenge the loss of driving privileges in court, and, if that is impossible, you can get a driving permit under most circumstances, which allows you to drive during the license suspension period.

What Happens After Refusing a Breathalyzer?

Most counties in Illinois can now secure a warrant for a blood test from their patrol cars. This new automation accelerates the once tricky process of getting a judge's signature. Then, law enforcement will take suspected drunk drivers to a hospital where a blood test will take place. This also applies to those who have severe injuries because of a traffic accident.

Essentially, the need for evidence of blood alcohol level overrides individual rights. Many criminal defense attorneys disagree with the new procedures.

Should You Take a Breath Test For a DUI?

Some criminal defense lawyers feel constitutional rights are in question, but criminal courts argue injury rates and fatalities from alcohol use are the reason to tighten the rules.

What the Court Will Do After I Refuse to Take a Breathalyzer Test?

Many suspected drunk drivers who refuse to take the breathalyzer test believe there will be no evidence against them, and thus drunk driving conviction can't happen. However, that's not true because the state may have more evidence against them.

A police officer will pull over a driver that's not obeying traffic laws. If the officer suspects the driver is driving under the influence of alcohol or drugs, they'll administer a field sobriety test. It's only then that they may ask the driver to take a breathalyzer test.

All the activity leading up to a DUI arrest is evidence, and the prosecutor has the burden of proof in criminal cases. There may be audio and video evidence, witness statements, and driving records proving that the driver was driving erratically.

The mere fact a driver refuses to take a breathalyzer test will go on the record, too. These events can make the situation worse for some defendants.

Can You Refuse a Field Sobriety Test?

If a police officer pulls you over under suspicion of impaired driving, the officer may ask you to take a field sobriety test, which includes walking in a straight line or blowing into a portable breathalyzer.

You aren't legally required to take a field sobriety test once you're pulled over. Theoretically, this means you may refuse to take any field sobriety tests asked of you before an arrest and your license won't be suspended. However, whether that actually happens is a different story altogether.

The lack of legal responsibility to take field sobriety tests is complicated by the subjectiveness of field sobriety tests and the fact that you can still be arrested because of other signs of impairment. While you can refuse a field test, the odds are high that you may still get arrested, after which you are legally obligated to complete at least one field sobriety test.

At Tommalieh Law, our Tinley Park DUI lawyers have in-depth knowledge and vast experience defending drivers charged with driving under the influence of drugs or alcohol throughout Illinois. If you or a loved one have been arrested for intoxicated driving, call our criminal defense law firm today at (708) 232-0017 or visit our contact us page. Our DUI attorneys frequently represent clients throughout Cook County, DuPage County, Kane County, Kendall County, Lake County, and Will County.

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