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The Consequences of Refusing a Breathalyzer

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You have probably seen it countless times in movies and television. A person is detained by police for questioning or arrested on suspicion of a crime, and along the way, that person demands something from the officer—usually a phone call—while declaring something to effect of “I know my rights.” Real life, of course, is often much different than what you see on TV, and a large portion of the population probably does not what rights they have in a given situation. For example, if you are pulled over on the suspicion that you are driving under the influence (DUI), do you have the right to refuse to take a breathalyzer test?

Implied Consent

According to Illinois law, a person who operates a motor vehicle on the streets or public highways of the state automatically grants his or her consent to submit to chemical testing for blood-alcohol content (BAC). Such tests may be breath, blood, or urine tests, with breath tests being the easiest to administer during a traffic stop. There is, however, an important provision in the law that is relevant to your rights in this type of situation.

Implied consent is only applicable if you are arrested on suspicion of driving under the influence. If the officer asks you to take a breathalyzer before notifying you that you are under arrest, you are within your rights to refuse.

Before Arrest

In many cases, a law enforcement officer will try to gather as much information as possible before making an arrest for DUI. He or she will observe your posture, speech patterns, and coordination. The officer will also ask questions about whether you have been drinking, where you are coming from, and where you are going. It is not uncommon for him or her to ask for a preliminary breathalyzer test.

This preliminary test is usually more casual that one administered after an arrest, and the results of a preliminary test are not usually admissible as evidence in your case. At this stage, you can refuse to take the test without facing criminal or administrative penalties. The officer may become more suspicious and increase his or efforts to find additional evidence, but you cannot be punished for refusing a preliminary breathalyzer.

Upon Arrest

If at some point during the stop, the officer informs you that you are being placed under arrest on suspicion of DUI, the entire situation changes substantially. The law actually requires the officer to conduct a chemical test if there is probable cause that you are under the influence of alcohol or drugs. Compared to a preliminary test, a chemical test upon arrest must be conducted in accordance with strict protocols, and the results may be admissible. Refusing a test after you have been arrested will have consequences.

Unlike some states, Illinois does not allow additional criminal charges for refusing a breathalyzer. Instead, administrative penalties apply in the form of a driver’s license suspension. Your license will be suspended for one year for a first-offense refusal and three years for any subsequent refusal within five years. Be aware, however, that a failed chemical test incident to arrest results in a six-month suspension for a first offense and one year for a subsequent failure in five years. There are situations, therefore, where refusing the test and denying law enforcement the extra evidence could be worth the longer suspension. Additionally, if the officer did not follow proper procedure, you could have grounds to contest your suspension.

Get the Help You Need

Criminal charges for DUI can be confusing and overwhelming. If you or a loved one has been arrested, contact an experienced Will County DUI defense attorney. Call 815-740-4025 for a free consultation at the Law Offices of Jack L. Zaremba, P.C. today.

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