If you’re confused about Illinois breathalyzer laws and blood alcohol concentration (BAC) testing you are not alone. Many people know that they have “impliedly consented” to breathalyzer testing by driving within the state. However, they also know they can typically refuse chemical testing. It’s not illegal to refuse a breath or blood alcohol content testing, but there are criminal penalties for refusal.
These contradictions can leave drivers with the vaguest understanding of the breathalyzer law. But, every driver should understand his or her rights and the potential consequences for chemical testing refusal.
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Can You Refuse a Breathalyzer Test in Illinois?
In Illinois, anyone who operates a motor vehicle on public roadways is deemed to have consented to breathalyzer testing for alcohol and other drugs as well as intoxicants. This means, by driving in Illinois, you consent to chemical testing.
However, many people don’t know that implied consent becomes operational only when a police officer arrests you for driving under the influence of alcohol or drugs (DUI). Besides, the police officer must have probable cause for the DUI arrest. If you haven’t been arrested, you may refuse chemical testing, and you aren’t subject to license suspension based on that refusal. If the summary suspension is ordered, not being under a DUI arrest and lack of probable cause are among the few defenses allowed at a hearing on the summary suspension.
Breathalyzer tests are the most common chemical tests. And often people speak in terms of “breathalyzer refusal.” But the Illinois statute extends implied consent to chemical testing of breath, blood, urine, and other bodily substance. Thus, the police department or other law enforcement agencies may require additional testing of urine or other bodily substances, even after administering a breath or blood alcohol test.
If you are unconscious, under Illinois law you’re deemed not to have withdrawn consent. And law enforcement may get samples for testing before you regain consciousness. However, under most circumstances, you won’t be coerced to comply with a breathalyzer or another chemical testing for alcohol. Instead, the arresting police officer will advise you of the legal consequences of refusal and request that you take the test.
What are the Consequences of Refusing to Take a Breathalyzer Test in Illinois?
An Illinois driver who refuses a breathalyzer test is subject to a 12-month driver’s license suspension. The license suspension is often called a “summary suspension” and it’s often automatic. However, a driver who receives the notification of an automatic suspension because of breathalyzer refusal or other chemical test refusal is entitled to a hearing.
Illinois law limits the issues to be considered at the hearing. However, sometimes, it’s possible to defeat a refusal-based suspension. Instances when a driver can bear a refusal-based license suspension include:
Proving that he or she wasn’t under DUI arrest when the refusal happened.
Proving that the arresting police officers didn’t advise you of the consequences of breathalyzer refusal.
Proving that you didn’t make a conscious refusal.
However, in most cases, a driver who is arrested for drunk driving and refuses chemical testing should expect a 12-month driver’s license suspension.
Typically, a first-time DUI offender whose driving privileges have been summarily suspended can get a monitoring device driving permit (MDDP). Once your vehicle is equipped with a breath alcohol ignition interlock device (BAIID), the driving permit allows you to drive for any purpose and at any time during the statutory summary suspension. However, drivers who refused breathalyzer testing aren’t eligible for an MDDP.
Further, a driver who is subject to a blood test is liable for the expense of the blood test (of up to $500) if:
The driver refused to submit to a breathalyzer test, or
There’s probable cause to believe the breath test would disclose usage of drugs or other intoxicating compounds.
However, a DUI offender pays the costs of the blood test only if he or she is convicted of DUI in court.
Another consequence of refusing a breath test is that the prosecutor may present evidence of the breathalyzer refusal in the criminal case if the defendant is on trial for DUI. This statute allows the prosecution to suggest to the court that the breathalyzer refusal is evidence of your guilt. This means a prosecutor may argue that the driver refused chemical testing to hide evidence of intoxication.
Can You Get a Hardship License if You Refuse a Breathalyzer?
If you have refused a breathalyzer test before and then subsequently refuse again, you will be charged with a Class A misdemeanor offense. In a criminal case, the prosecutor can tell the court that you refused the breathalyzer test, and this is deemed as strong evidence of guilt.
You only have ten days to seek a hardship license; however, that’s only if you refused a one breathalyzer test in the past. Then you can try to get your driver’s license back, but only for specific purposes, such as driving to medical appointments, work, and/or school.
Even if you win your driver’s license back, there is a mandatory 90-day waiting period. If this is confusing, it’s a good reason to hire a DUI criminal defense attorney who can break down the process.
Can You Be Convicted of DUI Without a Breathalyzer?
Yes, you can get a DUI conviction even without a breathalyzer test because it’s not the only way for law enforcement officers to determine that you have been driving under the influence of alcohol or drugs.
If a driver refuses to take a breathalyzer test during a traffic stop, the police officer will probably perform a variety of other field sobriety tests. Also, the officer will investigate the scene for additional evidence that you have been driving while intoxicated. However, an experienced DUI attorney may still present an argument in your defense.
Contact Our Experienced Attorneys to Learn how Illinois Breathalyzer Laws can Affect Your Case!
If you have been pulled over on suspicion of driving under the influence of drugs or alcohol, the police officer will ask you to perform a variety of field sobriety tests and later he or she will request you to take a breathalyzer test. It’s imperative to note that you’re not under arrest and you haven’t been charged with any crime at this point. Law enforcement uses these subjective tests to build its case. Often, it’s in your best interest to refuse to take part in field sobriety tests and to refuse to take the breathalyzer test, even though doing may lead to your arrest.
At our law firm, our DUI attorneys have handled many DUI cases throughout DuPage County and Will County. Therefore, if you’ve been charged with drunk driving in Illinois, it’s essential you contact our criminal defense law firm as soon as possible at (630) 425-0250 so we can protect your rights while we build you the best defense.