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Posted on in DUI

Aurora, IL, Defense Attorney

Here in the state of Illinois, drunk driving accidents make up 30 percent of all statewide motor vehicle crash fatalities. Because of the large number of drunk driving deaths, law enforcement officials have cracked down on DUIs in Illinois, making over 27,000 DUI arrests in 2017 alone. If you have been pulled over by a police officer, and have been drinking, it is easy to feel as if you have no options other than to submit to blood alcohol concentration (BAC) testing, but it is important to note that it is not a crime to refuse a DUI test

BAC Test Refusal

As a driver in the state of Illinois, you imply consent to be DUI tested when you receive your driver’s license. That means refusing a BAC test is not a criminal offense, but rather an administrative offense. 

While there are a number of options for law enforcement to test your BAC after pulling you over, including urine or blood drawings, the most common testing method is through the use of a breathalyzer. This is a device used to test the BAC of a person under suspicion of DUI, with the use of a breath sample. 

It is important to note that refusing a breathalyzer can come with harsh legal consequences. A first-time offender will likely face an immediate license suspension of one year. A subsequent refusal can result in a three-year suspension. Still, by refusing to take a breathalyzer, you limit the prosecution to only the officer’s personal account of the incident. 

If you do take the test and are over the legal limit of .08, while it can be difficult to avoid a DUI conviction, it is not impossible. A skilled attorney can investigate the facts of your case and formulate the best possible course of action.

Contact an Elgin, IL DUI Defense Lawyer 

With more than a decade of legal experience in the state of Illinois, including as an assistant state’s attorney, Brian J. Mirandola is well equipped to fight for your rights. If you have been arrested on DUI charges, it is critical to understand the potential ramifications of a conviction. Our legal team will fight to keep a conviction off your record and can help preserve your driving privileges. To schedule a free consultation with an experienced Kane County criminal defense attorney, call us today at 847-488-0889. 

Sources:

https://www.cyberdriveillinois.com/publications/pdf_publications/dsd_a118.pdf

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Kane County license suspension lawyerWhen you get behind the wheel of a car or truck on Illinois roadways, you have certain rights, but you also assume certain responsibilities. While you may not be able to control the actions of other drivers, you have the responsibility to operate your vehicle in a manner that promotes safety to both other individuals and the public at large. Safe driving means that, among other considerations, you are not impaired by alcohol, drugs, or other substances. With that in mind, Illinois law maintains that by exercising your driving privileges, you are granting implied consent to blood-alcohol content (BAC) testing if you are ever arrested on suspicion of driving under the influence. If you are asked to submit to a BAC test including breathalyzer testing, following a DUI arrest, refusing to cooperate will cost you your driving privileges.

Separate From Criminal Prosecution

Technically, refusing a BAC test is not a crime, but that does not mean you cannot be punished. Based upon the state’s implied consent laws, refusing a test subsequent to an arrest on suspicion of DUI is an administrative offense for which the penalties are imposed by the Secretary of State’s Office. Any administrative penalty is in addition to those that could result from eventual prosecution on charges of driving under the influence.

Statutory Summary Suspension

If you refuse to submit to BAC testing when you have been arrested for DUI, your driving privileges will be suspended for 12 months. A second or subsequent refusal will result in a three-year suspension. It is worth noting that the penalty for refusing a BAC test is substantially more severe than for failing one. A failed breathalyzer or other chemical test for BAC results in a six-month suspension for a first offense and a one-year suspension for a second or subsequent offense.

DUI Conviction Still Possible

Some drivers may believe—in the moment, at least—that if they refuse a BAC test, prosecutors will not have enough evidence to secure a conviction on DUI charges. While blood-alcohol content is a standard that can be easily quantified, it is far from the only factors that can lead to a DUI conviction. Other signs of impairment include slurred speech, careless driving, inability to maintain focus, and the presence of alcohol on a driver’s breath. It is also important to remember that your refusal to comply with testing can be presented as evidence against you as your case moves along.

Get Help Today

While a statutory summary suspension is automatically imposed, the suspension may be overturned in certain situations. Doing so requires the assistance of an experienced Kane County driver’s license suspension lawyer. Contact the The Law Offices of Brian J. Mirandola to schedule your complimentary consultation today. Call 847-488-0889 and let us show you how we can help you protect your future.

 

Source:

https://www.cyberdriveillinois.com/publications/pdf_publications/dsd_a118.pdf

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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.

Sources:

http://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=062500050K11-501.1

https://www.cyberdriveillinois.com/publications/pdf_publications/dsd_a118.pdf

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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.

Sources:

https://www.cyberdriveillinois.com/publications/pdf_publications/dsd_a118.pdf

http://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=062500050K11-501.1

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Posted on in DUI

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.

Sources:

https://www.thoughtco.com/beat-a-breathalyzer-3975944

https://www.isp.state.il.us/docs/1-195.pdf

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