Do I Have to Take a Breathalyzer Test When The Police Ask me to in Illinois?

DUIThe question posted in the title to this article is one that I am frequently asked by my clients. There’s no easy answer to this question. When asked this question, the best I can do is explain the consequences of taking a breathalyzer test and the consequences of refusing to take a breathalyzer test.

First, let’s talk about what a breathalyzer test is. Basically, a breathalyzer test refers to the test that is used by the police to measure the amount of alcohol in the breath of the person that is taking the test.  This test is almost always administered at the police station.  If the test is administered properly and the machine is functioning properly, the results from that test can be used in court to prove that you were driving a vehicle while under the influence of alcohol.  Before you are asked to take a breathalyzer test the police officer has to have reasonable suspicion to believe that you were driving a vehicle under the influence of alcohol. Typically, what an officer will do first is to ask you to perform field sobriety tests to determine if you are under the influence of alcohol.  The field sobriety test is really three standardized tests performed on the side of the road that can tell a police officer if you are under the influence of alcohol. The three tests are the horizontal gaze nystagmus, the walk-and-turn and the one-leg stand.  Police officers receive specialized training on how to perform these tests and on how to properly score the results. If a police officer determines that you failed these tests, the officer may ask you to take a preliminary breath test (PBT). The PBT is a handheld device that the officer carries in their police vehicle that is not accurate enough to be allowed by the courts to be used to prove that you were driving under the influence of alcohol. But it can be used as evidence to help form a basis for reasonable suspicion for the officer to place you under arrest and to take you down to the police station so that you can be asked to take a breathalyzer test.  In other words, the PBT, along with the police officer’s observations and the results of the field sobriety test can be used to by the prosecutor to provide the court with a basis for the reasonable suspicion needed to place you under arrest and to take you down to the police station to request that you take a Breathalyzer test.  Unlike a breathalyzer test Illinois Law does not impose any penalties on a refusal to submit to a PBT.

If you are taken down to the police station the police officer will ask you to take a breathalyzer test. At that point you have a decision to make. You can either agree to take it or refuse to take the test. If you agree to take the test you will be informed by the police officer that if the results of the breathalyzer test indicate that your blood alcohol level is .08 or above your license will be suspended for 6 months if you are a first-time DUI offender. If you are not a first-time offender you will be advised that your driving privileges will be suspended for at least 3 years. You were involved in an accident that caused personal injury to another person, your license will be suspended for 12 months.

If you refuse to take a breathalyzer test the police officer will inform you that if you are a first-time offender your driver’s license will be suspended for a minimum of 12 months. If you are not a first-time offender your license will be suspended for a minimum of three years. If you were involved in an accident involving personal injury to another your license will be suspended for a minimum of 12 months.  Any suspension of your driver’s license will take effect on the 46th day following your arrest.

If you are charged with a DUI it really means that two separate legal proceedings will begin involving you. One will be the criminal case involving you and the People in the State of Illinois. The second case is a civil matter between you and the Secretary of State involving your driver’s license. While these are two separate legal proceedings the one thing both of these cases have in common is the breathalyzer test. When it comes to the civil case between you and the Secretary of State, whether you passed or failed the breathalyzer test or whether you refused to take the breathalyzer test will determine whether your driver’s license is suspended and for how long. When it comes to the criminal case the breathalyzer test will usually determine whether you will be found guilty in the criminal case.  And this is precisely why there is no clear-cut answer to the question posted in the title to this article.  Just because you refused to take a breathalyzer test does not mean that the state will be unable to prove that you are guilty of driving under the influence of alcohol.  You can be proved guilty of driving under the influence of alcohol if the evidence in the case is strong enough to prove you guilty beyond a reasonable doubt.  The best way to explain this is to provide you with examples of cases that I have had.  I have had cases in which the state has produced evidence, in the form of a squad car video, which shows that my client was unable to perform the field sobriety tests. I’ve seen cases in which my client has freely admitted to drinking too much alcohol before they started driving their vehicle. I’ve had clients admit on tape that they’ve had too much to drink to be driving.  On the other hand I’ve had cases in which the lack of blood alcohol test results has made it impossible for the state to prove my client guilty of driving under the influence alcohol. I’ve had cases in which the refusal to take a breathalyzer test led to a finding of not guilty in the criminal case. So at the end of the day whether or not you should take a breathalyzer test depends on your particular case and does not allow for a simple yes or no answer.

James Dimeas is an award winning Chicago criminal defense attorney and author with more than 23 years of experience aggressively representing his clients in DUI cases.  If you have a DUI case in Illinois, contact me in Chicago (312-229-5500), DuPage and Kane (630-504-2096) or Lake (847-696-6458) for a free and confidential consultation to discuss your legal options.