The Law Office of Brian J. Mirandola


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breathalyzer, Kane County DUI defense attorneyWhen a police officer has a reason to suspect that you are driving under the influence of alcohol, the officer may ask to submit to a blood alcohol content (BAC) test. These tests are usually conducted during a traffic stop. The stop may have been initiated based on a minor traffic violation or erratic driving, but if something during the stop triggers the officer’s suspicion, the request for a BAC will usually follow.

The most common type of BAC test—and the easiest to conduct—is a breath test. BAC breath tests are usually known simply as "breathalyzer" because of a particular brand of testing machine that has become synonymous with the test. You probably know that if you blow a 0.08 or higher on your breathalyzer, you are considered to be statutorily intoxicated and can be charged with driving under the influence (DUI). But, do you have to take the test when you are asked to do so?

Preliminary Testing

There are several points during the course of a stop and potential arrest when the officer could ask you to take a breathalyzer. The first is a preliminary test. Preliminary testing is a way for the police to develop a full understanding of the situation and to establish probable cause—if there is any—for an arrest. The officer will usually ask about preliminary breathalyzer while you are still sitting behind the wheel.

You have every right to refuse a preliminary breathalyzer with no direct consequences. Keep in mind that if you say no, the officer may look a little harder for other signs that you are intoxicated, such as trouble focusing and slurred speech. There are many ways for the officer to establish probable cause, and the breathalyzer is only one of them.

When You Are Arrested

If the preliminary investigation gives the officer enough probable cause to arrest you on suspicion of DUI, you will be asked to submit to a breathalyzer again—or a blood or a urine test, alternatively. This time, the test will be conducted at the police station. Refusing to take the test at this point will result in the suspension of your driving privileges for one year. The suspension is three years if you were arrested and refused previously.

It is important to keep in mind that failing a BAC test after your arrest will result in a six-month license suspension for a first offense and one year for a subsequent offense. A failed test also gives prosecutors quantitative evidence that you were intoxicated. This means that there is a potential upside to refusing the test. Without the evidence of a failed test, it may be harder for prosecutors to prove that you were under the influence, though your refusal can be used against you.

Let Us Help

If you have additional questions about the DUI laws in Illinois, contact an experienced Kane County DUI defense attorney. Call 847-488-0889 for a free consultation at The The Law Office of Brian J. Mirandola today.


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alcohol, Kane County DUI defense attorneyIf you are stopped by a police officer on suspicion of driving under the influence (DUI), the arresting officer may ask you to take a breath, blood or urine test in order to determine your blood alcohol content (BAC). If your blood alcohol content is found to be 0.08 or higher, you are considered legally intoxicated and you will likely be charged with a DUI. But, are you required to take such a test?

Implied Consent

Illinois has an "implied consent" law. Implied consent means that by driving on the streets and highways of Illinois, you agree to submit to chemical testing for impairment if you are ever arrested on suspicion of DUI. A chemical test is different from a typical criminal interrogation in that you do not have the right to speak to an attorney before you are tested.

It is not uncommon for a police officer to ask a driver to submit to a preliminary breath test before he or she is arrested. In most cases, a preliminary test is used to establish probable cause, and you do not have to take this preliminary test. Refusing a test at this point does not result in any specific penalties, but it may give the officer reason to look more carefully at other indicators of intoxication such as slurred speech or decreased motor skills.

Incident to Arrest

After you are arrested for DUI, the arresting officer will tell you that your license will be suspended if you refuse to submit to an evidentiary chemical test. The first time that you refuse to take the test, the result is that your driver’s license will be suspended for one year. A second or third refusal in the future will result in your driver’s license being suspended for three years. If you refuse to take the BAC test, the arresting officer will submit a sworn report to the Illinois Secretary of State that explains the details of the refusal, and you will receive notice of your license suspension. The actual suspension begins 46 days after you receive that notice.

The answer to, "Should I refuse a blood alcohol test?" is not always simple. In most cases, it is not beneficial to refuse to take a blood, breath, or urine test when you are arrested for a DUI. Although the consequences for refusal are often milder than those for a DUI, refusing the test does not guarantee that you will not be convicted of a DUI. A driver can still be convicted of driving under the influence even if they were not tested. In some cases, refusing to take a blood alcohol test can make you appear even more guilty, and prosecutors may suggest in court that you refused the test because you knew you were intoxicated.

Get Help with Your DUI Case

If you have been arrested and charged with DUI or you have questions about your right to refuse blood alcohol tests, contact an experienced Kane County DUI defense attorney. Call The The Law Office of Brian J. Mirandola at 847-488-0889 for a free consultation today.


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breathalyzer, Kane County DUI defense attorneyEvery one of us has experienced fear in a particular situation—especially when the police are involved. In fact, the fear that arises when one is being pulled over is extremely common, and police officers are trained on how to handle a person’s fears. Of course, if you have been drinking and you are pulled over, your fear is likely to be even greater. Fear can lead to impulsive and irrational decisions, including attempting to trick or fool a breathalyzer test. Regardless of what you may have heard, such tricks rarely work and may lead to even bigger problems for you.

Two Rounds of Breathalyzers

It is important to understand that there two different types of breathalyzer tests typically administered during a stop for suspected driving under the influence (DUI). The first is a preliminary test, which provides a basis on which the officer will conduct the rest of the stop. Preliminary blood-alcohol content (BAC) testing is not admissible in court and officers may administer preliminary tests in a fairly casual manner. It is during the preliminary tests that those inclined to try to manipulate the test results are likely to do so.

The second round of testing is conducted after a person has been arrested on suspicion of DUI. There are specific protocols that the officer must follow when conducted the second test, as the results of this round are usually used as evidence during prosecution. For example, the officer will observe the suspect for a prescribed amount of time to ensure he or she does not put anything in his or her mouth that could affect the test.

Pennies, Mouthwash, and Sprays

As the officer approaches your car, it may be tempting to rinse your mouth with mouthwash or breath spray. Or, perhaps you have heard that putting a penny in your mouth will cause a breathalyzer to give a lower reading. The short answer is do not bother with these types of tricks. To begin with, many types of mouthwash and breath sprays actually contain alcohol, and while a breathalyzer is not really focused on alcohol in a subject’s mouth, the residual amounts could cause the preliminary test results to show higher than they otherwise would show. Breathalyzers take samples of deep lung air—which is why the officer will ask you to continue exhaling for as long as you can. Putting items in your mouth or attempting to mask the smell of alcohol will have no effect on the traces of alcohol deep in your lungs.

If you are afraid of failing a breath test, you could refuse to take it. Refusing a preliminary test does not carry criminal or administrative consequences, but your refusal could prompt the officer to look even more closely for other signs of impairment. Refusing a test after you have been arrested will result in the suspension of your driving privileges, but so will failing. Many believe that you are better off dealing with the suspension rather than providing the police with additional evidence to be used against you.

Call Us for Help

When you have been arrested and charged with DUI, you need an attorney on your side who will fight to protect your rights. Contact an experienced Elgin DUI defense lawyer for help. Call 847-488-0889 for a free consultation at The The Law Office of Brian J. Mirandola today.


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Posted on in DUI

breathalyzer, Kane County criminal defense attorneyBreathalyzers are the most commonly used form of testing used to find a driver’s blood-alcohol content (BAC). Usually administered by a police officer during a traffic stop, breathalyzers are used to determine if a driver is driving under the influence of alcohol. Although they are used quite frequently, breathalyzers are not the most accurate measure of how much alcohol an individual has consumed. A blood test is much more precise, but blood tests cannot be easily administered during a traffic stop.

In most cases, a breathalyzer will only be administered if the police officer has reasonable suspicion that a driver is under the influence of alcohol. If an individual has more than 80 mg alcohol per 100 mL of blood in their body, he or she is considered over the legal limit in Illinois.

Sources of Error

Over the years, many individuals and groups have called the accuracy of breathalyzers into question. In February, thousands of tests were thrown out in Boston after suspicion that the tests were erroneous. The machines were found to be improperly calibrated and maintained by the state of Massachusetts. Another source of error is interfering compounds found in the breath which can significantly affect the test results. Substances such as lacquer, paint remover, gasoline, cleaning fluids, and other ethers/alcohols can result in a false positive reading on some breathalyzer machines.

Diabetics have a higher amount of ether alcohol in their body which has been found to cause a false positive in some older breathalyzer machines. Those suffering from kidney disease can be at risk for inaccurate BAC readings as well. Acid reflux, belching, and alcohol trapped in dentures or dental fixtures have also been cited as causes for inaccurate BAC readings.

Breathalyzer Myths

Methods to "trick" breathalyzers have mostly been debunked. Some drivers hoping to avoid a DUI conviction have unsuccessfully tried eating breath mints or gargling mouthwash before the test. Others have touted the efficacy of putting pennies and batteries in one’s mouth before taking a breathalyzer test. Although these methods may decrease the smell of alcohol on the breath, they do not decrease the amount of alcohol in the blood. Residual mouth alcohol from mouthwash, in fact, can result in a BAC which is much higher than the actual amount of alcohol in a person’s bloodstream. Regardless, police are trained to wait 15-20 minutes for mouth alcohol or other possible interferences to dissipate before administering the test.

We Can Help

If you have been arrested and charged with driving under the influence, an experienced Kane County criminal defense attorney can offer the guidance and representation you need. We are prepared to challenge breathalyzer results when appropriate, and we will work hard on your behalf throughout the process. Call 847-488-0889 for a free consultation today.


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breathalyzer, Elgin DUI defense attorneyIn Star Wars Episode I: The Phantom Menace, the wise Jedi master Yoda offers this sage advice: "Fear is the path that leads to the dark side." There is no question that fear makes people do some pretty strange things. When we are afraid, we may lash out at close friends and loved ones, we may turn inward and become self-destructive, and we may act in ways that are very uncharacteristic. Fear is also often of the strongest emotions present when a person is pulled over on suspicion of drunk driving—fear of conviction, license suspension, and other penalties—and some drivers will do just about anything to escape prosecution.

One Poor Choice After Another

Earlier this week, a man in Rock Hill, South Carolina was pulled over by local police after law enforcement officers observed the man’s car swerving and crossing the center line several times. As the prepared to approach the car, officers say they saw the driver "actively spraying AXE body spray into his mouth," and included the observation in their police report. When they asked the man what he was doing, the report states that he told them he was just applying the spray from "head to toe."

It is unclear whether the driver hoped to mask the smell of alcohol on his person or if he thought the spray might taint the results of a breathalyzer test. Either way, the man reportedly failed three separate field sobriety tests and was arrested on charges of driving under the influence.

Myths About Breath Tests

You may have heard that if you need to drive when you are at or near the legal limit, you should keep mouthwash or mints in your car. Some may have even suggested sucking on a penny or other tricks for beating a breathalyzer. While certain substances—alcohol-based mouthwash, for example—could temporarily increase the amount of alcohol in your breath, a properly administered breathalyzer takes such methods into account. In most cases, the official test will not be administered until you have been observed for at least 15 minutes without putting anything in your mouth, thereby limiting the effect of masking or tainting agents.

This is not to say that breathalyzers are perfect or that the testing procedure is always beyond reproach. But, rather than wasting your time on trying to fool the machine, you may be better off simply exercising your right to refuse such a test, even though a statutory summary suspension may result.

Call Our Office Today

If you have been arrested on DUI charges or a facing a license suspension for failing or refusing a breathalyzer test, you need legal help. Call an experienced Elgin DUI defense attorney at The The Law Office of Brian J. Mirandola today. We will provide the guidance you need throughout the proceedings and can even help you get back on the road sooner than you may have thought possible.


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