Should You Refuse the Breathalyzer?

 Posted on June 29, 2016 in DUI

It is popularly suggested that drivers suspected of driving under the influence submit to field sobriety testing in order to avoid a DUI charge. While there may be several reasons why one should avoid these tests in many other states, the state of Illinois has enacted steps to “persuade” drivers to do so. In most cases, refusal would not be in one's favor. However, with the most commonly used form of sobriety tests, the breathalyzer, it is important to understand that the technology has many downfalls. 

Laws to Prevent Refusal 

The state of Illinois is an “implied consent” state. This ultimately means that in return for driving permissions, if you are arrested for DUI and the arresting officer had probable cause for the arrest, then you are consenting to a chemical test of your blood alcohol content (BAC). This can be in the form of blood, breath or urine.

The law goes on to explain that you also consent to a preliminary test, which in most cases use a breathalyzer test. The results of the preliminary test will be used to establish probable cause, which may result in an arrest. After the arrest is made, then you are required to submit to chemical testing. However, if you refuse to take the chemical test, then you will be subject to penalties, which the officer is required to tell you at the time of refusal. Penalties for refusal include: 

• First refusal: one year license suspension;
• Second refusal: three year license suspension; and
• Third refusal: three year license suspension.

What If You Refuse Preliminary Testing?

You do have every right to refuse to take the preliminary testing as you are not under arrest. Still, it may not be the wisest choice. Officers are aware that after arrest, if you refuse, you will be penalized regardless of whether you were intoxicated or not. Therefore, it is common for officers to find other identifying symptoms of intoxication to establish probable cause and make an arrest based on that cause. Common signs that indicate possible impairment are: 

• Problems in maintaining proper lane position;
• Speed and braking issues;
• Judgement problems; and
• Faulty vigilance.

Breathalyzer Defense

If there is a possibility that you may not have exceeded the legal BAC limit of 0.08 percent, then you may want to consider taking the test. It is possible that the court may find you guilty of DUI even without the breathalyzer results as it may be considered an admission of guilt—you knew you were well beyond the limit. In many cases, this conviction is much harsher than the refusal, which can include time in jail, fines, and community service. Therefore, not only do you have the refusal punishments, you also have the additional DUI consequences.

On the other hand, breathalyzers are well known for not being a perfect science. Therefore, it is possible that the breathalyzer will determine that you are NOT intoxicated and the entire ordeal can be avoided. Not only that, but the results of a high BAC can be argued in court for several reasons. Reasons may include, but are not limited to, the following:  

• Improper testing;
• Incorrect calibrations;
• Mouthwash residue;
• Different weights and intoxications; and
• Other ingested items being mistaken as alcohol. 

Speak with an Illinois Criminal Defense Attorney Today

If you have questions pertaining to breathalyzers and DUI charges, it is extremely beneficial to consult with a skilled DuPage County, IL DUI defense lawyer. Contact Davi Law Group, LLC today. With four locations to conveniently serve you, contact us today at 630-580-6373 to schedule your initial consultation.

Sources:

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

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