The Law Office of Brian J. Mirandola


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Should You Refuse a Breath Test?

Posted on in DUI

breath test, Kane County criminal defense attorneyIf you are ever pulled over on the suspicion that you are driving under the influence (DUI) of alcohol or drugs, there is a very good chance that the officer will ask you to take a breath test or another type of blood-alcohol content (BAC) measurement test. While you are probably aware that there could be consequences for failing a BAC test, there may also be consequences for refusing such a test, depending on the circumstances of the situation.

Preliminary Testing

A BAC breath test is commonly known by the genericized trademark "breathalyzer," taken from the brand name of a popular line of breath alcohol testing devices. A breathalyzer is one of several tools that police officers will use to determine whether there is probable cause that a driver is intoxicated. During a DUI stop, an officer may question the driver about what he or she may have had to drink. The officer may also ask the driver to submit to field sobriety tests and a breathalyzer.

At this point in the stop, a breathalyzer is considered a part of the preliminary testing process and its results are not admissible in court. You are, therefore, free to refuse the breathalyzer without subjecting yourself to additional consequences. Keep in mind, however, that your refusal may suggest to the officer that you have something to hide, and he or she may look more closely for other indicators of intoxication, such as slurred speech or decreased motor skills. Based on the preliminary testing results and his or her observation, the officer must decide if there is probable cause to justify a DUI arrest.

After an Arrest

Once a driver is placed under arrest for DUI, the situation changes dramatically. The officer may again ask the driver to submit to a breathalyzer, but this time, the results are admissible in court. Evidentiary breath tests are usually conducted at the police station or another facility with a certified and calibrated testing device. Such devices are generally more accurate than the portable versions used during preliminary testing. The officers conducting the tests will also follow testing protocol more carefully so as to obtain an accurate reading.

Refusing a breathalyzer after an arrest for DUI does have consequences in Illinois. If you refuse, you will face a one-year suspension of your driving privileges for a first offense and a three-year suspension for a second or subsequent refusal.

It may, however, be in your best interest to refuse an evidentiary breathalyzer, depending on the situation. A failed BAC test after an arrest will result in a six-month license suspension for a first offense anyway, but a failed test gives prosecutors quantifiable evidence of intoxication, as defined by the law. If there is little other evidence to support your arrest for DUI, refusing a breathalyzer could be your best option to avoid a conviction.

Call an Attorney Right Away

When you or a loved one has been arrested and charged with driving under the influence, you need legal guidance immediately so that your rights are not compromised in any way. Contact an experienced Elgin DUI defense attorney by calling 847-488-0889 for a free consultation. Let us provide the skilled representation you need.


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