The Law Office of Brian J. Mirandola


47 DuPage Court, Elgin, IL 60120

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Posted on in DUI

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.


Last modified on

Posted on in DUI

implied consent, DUI, BAC testing, Illinois criminal defense attorneyAs a licensed driver in Illinois, you have been granted certain privileges related to the operation of a motor vehicle on roadways within in the state. In exchange for such privileges, you are expected to assume certain responsibilities under law regarding safe and proper driving practices. The state of Illinois also maintains "implied consent" laws to which, by operating a vehicle in accordance with the terms of their licenses, all drivers are subject. One of the more common applications of implied consent relates to blood-alcohol content (BAC) tests when a driver is suspected of driving under the influence (DUI).

Like the implied consent laws in most states, the statutes in Illinois require you to submit to a breath, urine, or blood test if you have been arrested on suspicion of DUI. With probable cause for such an arrest, the law enforcement officer must arrange that the test be conducted as soon as possible for the sake of accuracy. There is no right granted for you to contact an attorney prior to the test and the officer selects the type of test most appropriate for the situation.

In addition, the laws in Illinois provide your implied consent to a breath test, often referred to as a breathalyzer, without the necessity of an arrest. Tests like these are often used as a form of field sobriety tests to determine probable cause that may lead to an arrest for DUI. While you may be inclined to refuse a preliminary test, other circumstantial evidence may provide enough probable cause for your arrest anyway.

A refusal to submit to BAC testing can be extremely serious, especially after a DUI arrest. In fact, prosecutors may even use your refusal as grounds to show that you knew you were driving under the influence. Also, refusing to take a BAC test carries penalties in addition to those prescribed for a DUI conviction. A first-offense refusal results in one-year license suspension, with increased consequences for subsequent offenses.

Refusing a breathalyzer or other BAC test can present significant obstacles to your defense in light of the state’s implied consent laws. However, with the assistance of a qualified lawyer, the impact to your future may be minimized. Contact an experienced DUI defense attorney in Elgin today for a free consultation. Our team will investigate your case and work with you to provide the legal representation you deserve.

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