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What Happens If I Refuse a Breathalyzer?

Posted on in DUI Defense

Chicago DUI defense lawyersYou can probably imagine what it feels like to be pulled over by the police on a night where you have had a few drinks, even if it has never happened to you before. The lights flash behind you and your heart sinks. By the time the officer is at your window, you are probably extremely nervous, but you want to make this go as smooth as possible so that you get home quickly. As expected, the officer asks if you have been drinking, and you honestly answer that you had a couple earlier. Then, the officer asks if you will take a breathalyzer test. Can you refuse?

Understanding the Law

According to Illinois law, drivers give their implied consent to submit to blood alcohol content (BAC) testing by operating a motor vehicle on the streets and roadways of the state. There is an important caveat, however. Implied consent only refers to testing that is conducted incident to an arrest for driving under the influence (DUI). This means that you are under no obligation whatsoever to take a BAC test unless and until you have been arrested on suspicion of DUI. Regardless of what the officer tells you, if you have not been arrested, you cannot be forced to take a breathalyzer.

Possible Risks

Of course, if you refuse a breathalyzer at this stage of the stop, there is a good chance that the officer will become even more determined to find probable cause that would justify your arrest. He or she may ask you to participate in field sobriety tests, which, again, you cannot be forced to take. The officer will also watch you carefully for signs of impairment, including slurred speech, trouble focusing, and difficulty in maintaining your posture. If you are arrested, the entire situation changes significantly.

BAC Tests Upon Arrest

Once you have been arrested for DUI, you can still refuse a breathalyzer but there will be consequences. While you cannot face additional criminal charges for refusing a BAC test, doing so after you have been arrested will result in the automatic suspension of your driving privileges for one year for your first offense. If it is your second or subsequent refusal in five years, the suspension will last for three years.

Refusing a breathalyzer could still be the best choice, however. A failed breath test not only incurs its own suspension—six months for a first offense and one year for a second or subsequent failure in five years—it also gives prosecutors quantifiable evidence that you were driving under the influence. Prosecutors can try to use your refusal against you, but the difference your suspension could be worth it if the lack of evidence leads to the dismissal of the charges against you.

Contact a DUI Attorney

If you are facing DUI charges and a license suspension for refusing a breathalyzer, contact an experienced Chicago criminal defense attorney. We will work with you in finding a solution that protects your rights and limits the impact to your future. Call 773-276-5541 for a free consultation today.




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