The Law Office of Brian J. Mirandola


47 DuPage Court, Elgin, IL 60120

Subscribe to this list via RSS Blog posts tagged in refusing a BAC tests

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. 


Last modified on

warrantless, Kane County DUI defense attorneyAs we have previously discussed on this blog, refusing to comply with a law enforcement’s officers request for a blood-alcohol content (BAC) test subsequent to a DUI arrest will result in administrative penalties for the arrested driver. Illinois law makes it very clear that these consequences are not criminal charges but are administrative in nature and affect only state-issued driving privileges. In 13 other states, however, including neighboring Indiana, a refusal to submit to BAC chemical test is a crime and may be prosecuted. While the laws may be well-intentioned—reducing drunk driving is a good thing—they are being challenged in a matter now before the United States Supreme Court. Specifically, the Court must decide if refusing a warrantless chemical test should be punishable with criminal consequences.

Search and Seizure Laws

In virtually every other situation that involves collecting evidence, law enforcement must obtain a warrant prior to conducting a lawful search. There are two general exceptions: searches conducted for safety of the responding officer and those done to preserve evidence may proceed without a warrant. The United States Supreme Court has even ruled that such protections apply to an arrested suspect’s cell phone, holding that warrantless searches of electronic devices violate the Fourth Amendment. In 2013, the Supreme Court clarified that a warrant was also needed to mandate blood testing for BAC in DUI cases, a ruling that has become the basis for the current case.

Criminal Penalties and Warrantless BAC Tests

The major question at issue concerns criminal penalties for refusing a BAC test. Legal experts, along with lower courts, have identified that such penalties are necessarily linked with whether warrantless searches are permitted. If law enforcement is required to obtain a warrant, do so, and the suspect still refuses, criminal penalties are much more understandable. If an officer proceeds without a warrant, the suspect’s rights are much less clear.

Breath Test Options?

Several justices of the Supreme Court have expressed skepticism over the states’ claims that getting a warrant for a BAC test is too burdensome. With available technology, many believe that a warrant, in most cases, could be available very quickly. The Supreme Court also seems hesitant to lift the warrant requirement for a blood test, given the invasive nature of such testing and vast amount of other information that can be taken from a suspect’s blood sample.

Justices appear more open to the idea of allowing breath tests to continue without a warrant, as they are much less invasive. The data gathered by a breath test is also more directly applicable to the DUI investigation. The question that remains to be answered in that scenario, however, is whether refusing a breath test should subject a person to additional criminal prosecution.

DUI Representation

Here in Illinois, refusing a BAC test is not a crime but it can cause you problems in addition to those created by charges of DUI. If you are facing drunk driving charges, contact an experienced Kane County DUI defense lawyer. Call 847-488-0889 to schedule your free consultation at the The Law Office of Brian J. Mirandola today.


Last modified on
Avvo Illinois State Bar Association Kane COunty Bar Association
Back to Top