Can I Refuse a Breathalyzer and Still Be Charged with DUI?

Illinois DUI defense attorneys explaining breathalyzer refusal consequences and your legal rights.

Mike McMahon

June 29, 2025

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Can I Refuse a Breathalyzer and Still Be Charged with DUI?

Yes, you can absolutely refuse a breathalyzer test and still be charged with DUI in Illinois.

Under 625 ILCS 5/11-501, refusing the breathalyzer triggers automatic license suspension but doesn't prevent prosecutors from filing DUI charges based on other evidence.

Prosecutors can pursue "Under the Influence" DUI charges using officer observations, field sobriety tests, and your driving behavior, even without any breath test results.

Immediate Consequences of Refusal

Many people think refusing the breathalyzer eliminates the main evidence against them. This thinking can backfire in serious ways.

Refusing creates two separate problems: 12-month automatic license suspension and potential DUI charges. The license penalty happens immediately under Illinois' implied consent law, while prosecutors decide separately whether to file criminal charges.

Your license gets suspended longer for refusal (12 months) than for failing the test (6 months). You have only 46 days to request a hearing to challenge this suspension. Missing this deadline means automatic suspension with no appeal options.

How DUI Charges Work Without Breath Tests

When you refuse the breathalyzer, prosecutors build their case using different evidence that focuses on your behavior and officer observations.

Officers document everything they observe:

Your physical appearance including bloodshot eyes, alcohol odor, slurred speech, or unsteady movements. These observations become the foundation of prosecution cases.

Your driving pattern provides crucial evidence:

Weaving, speeding, or traffic violations support claims of impaired judgment. This evidence often justifies the initial traffic stop.

Field sobriety test performance becomes critical:

Poor performance on walk-and-turn, one-leg stand, or eye tracking tests serves as the main "scientific" evidence when there's no breath test.

Defense Options After Refusal

Refusing the breathalyzer doesn't eliminate your defense options. It sometimes creates new opportunities to challenge the prosecution's case.

Medical explanations can defeat charges:

Diabetes causing acetone breath odor, inner ear problems affecting balance, or prescription medication side effects can explain symptoms officers attributed to alcohol consumption.

Constitutional violations provide strong defenses:

If officers lacked reasonable suspicion for the traffic stop or violated your Miranda rights, evidence may be suppressed or charges dismissed.

Video evidence often contradicts officer testimony:

Dashboard and body camera recordings frequently show more normal behavior than described in police reports.

Common Questions About Refusal

Should I refuse if I've been drinking?

The decision involves weighing 12-month guaranteed license suspension against potential criminal conviction. This depends on your specific circumstances.

Can refusal be used against me?

Yes, prosecutors may argue that refusing shows consciousness of guilt. However, experienced attorneys know how to address this issue effectively.

How long is my license suspended?

First-time refusal results in 12-month suspension compared to 6 months for failing the test. Restricted permits may be available after serving part of the suspension.

Cases without breath test evidence can be more challenging for prosecutors because they rely on subjective observations rather than scientific measurements. This creates opportunities for effective defense strategies.

For comprehensive information about defending DUI charges without breath test evidence, see our complete DuPage County Under the Influence DUI defense guide.