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Consequences of Taking or Refusing a DUI Breathalyzer Test

Posted on in DUI Defense

Oak Brook DUI defense lawyerOne of the most common questions asked about driving under the influence (DUI) is this: If you are arrested for DUI, should you submit to a breathalyzer test at the police station or refuse to blow?

As you will see, this is a difficult question to answer. Some experts argue that the less evidence you give the prosecution, the better; in other words, refuse the test if there is any chance you are over the legal limit. Others argue that it makes sense to take the test because, if you are below the legal limit, you could get the DUI charge dismissed altogether.

The purpose of this article is simply to help you understand the consequences of taking versus refusing a post-arrest breathalyzer test. This test is also referred to as an evidentiary test because the device and procedures are considered accurate enough to be used as evidence in court.

Note that the evidentiary test is different from a portable breathalyzer test conducted at roadside during a traffic stop; that so-called “preliminary breath screening” test can be refused with no legal penalty.

Post-Arrest Breathalyzer Testing Has Two Legal Consequences

Before administering an evidentiary breathalyzer test, the police must give you a written warning that explains the consequences of taking vs. refusing the test.

First, if you refuse or fail this test, your driver’s license will be automatically suspended. This is an administrative sanction known as the statutory summary suspension of your driver’s license (625 ILCS 5/11-501.1). Whether you take the breath test or not, you still have the right to request a hearing at which you can challenge the suspension (625 ILCS 5/2-118.1).

Second, the results will directly affect your criminal DUI case. For example, it may be possible to convince the prosecuting attorney to dismiss the charges if your BAC is borderline (just barely at the legal limit). On the other hand, if you are charged with a DUI with a BAC of .16 or higher, you could be subject to the state's mandatory minimum penalties upon conviction.

Specific Consequences of Evidentiary BAC Test Results

Note: The following information applies only to adults age 21 and up who are not commercial drivers and were not involved in a wreck. Such situations are considered "aggravating factors" in a DUI case, and they often result in heftier penalties for the convicted. 

If you take the breath test and fail (BAC of .08 or higher):

  • The police will take your Illinois driver’s license and issue you a receipt that will allow you to keep driving for the next 45 days;
  • The statutory summary suspension of your right to drive begins on the 46th day;
  • The suspension period will be six months for a first offense, rising to 12 months if you failed or refused to test any time in the past five years;
  • You will be facing a criminal charge for DUI. Just remember, however, that an over-the-legal-limit test result does not guarantee a conviction. A skilled DUI defense attorney can often find police procedural errors that can help you avoid a DUI conviction.

If you refuse the breath test:

  • Your license will be suspended for 12 months for a first offense, rising to three years if you failed or refused to test any time in the past five years (625 ILCS 5/6-208.1);
  • The police could still try to convince the prosecutor to prosecute you for DUI. It will be harder for them to prove your guilt if you refused all testing and did not offer up any incriminating information when questioned. The prosecutor would have to rely on police officer testimony, other witness testimony if available, and any video or audio recordings that may have been made during the traffic stop or at the police station;
  • The police still have the option to request a court order (equivalent to a search warrant) allowing your blood to be drawn and tested for alcohol without your consent. This is happening in some counties that want to take a strong stand against DUI, particularly when someone has a record of prior DUIs.

If you submit to testing and your BAC is over .05 but less than .08:

You keep your driver’s license; no statutory summary suspension applies. However, you could still be found guilty on the criminal charge of DUI if the police are able to show convincing evidence that you were driving impaired.  

If you submit to testing and your BAC is .05 or less:

No statutory summary suspension applies. You should not be charged with alcohol-based DUI, either.

An Aggressive Oak Brook DUI Defense Lawyer

If you refuse or fail a breath-alcohol test, you have the right to contest the statutory summary suspension of your driver’s license. You have just 90 days to request a hearing, though. So call an experienced DuPage County DUI defense attorney immediately. At McMahon Law Offices, we will study the specific circumstances of your case and determine the best way to help you. Call us at 630-953-4400 for a free consultation in our Oakbrook Terrace office, including evenings and weekends.






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