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Illinois DUI

Consequences of Refusing or Failing a Breath Test in Illinois

January 27, 2025

This image captures a tense moment during a roadside police stop, where a female driver is engaged in a conversation with a law enforcement officer, potentially regarding a traffic violation or DUI check.

Explore the nuances of Illinois DUI laws and the significant implications of breath tests in this comprehensive guide. Learn about your rights and the strategic choices you can make if faced with DUI charges in Illinois.

Key Takeaways

  • Illinois law allows officers to conduct a preliminary breath test if they have reasonable suspicion of DUI.
  • Refusal of a chemical breath test results in harsher penalties compared to failing the test.
  • Drivers automatically consent to chemical testing under Illinois' implied consent law.
  • According to Illinois Vehicle Code Section 11-501.5, if a law enforcement officer has reasonable suspicion that a driver is driving under the influence of alcohol, the officer can conduct a preliminary breath screening test, requesting the driver to provide a breath sample after pulling the driver over. 625 ILCS 5/11-501.5.1 Per Illinois case law, a driver MAY refuse this test, which is typically conducted on the side of the road.2 However, regardless of the preliminary results, the officer may request a separate “chemical test” if probable cause for arrest is established.3  

    A chemical test is usually initiated at the police department by the arresting officer using a breathalyzer machine. Illinois operates under an “implied consent” law, meaning that all drivers automatically agree to undergo chemical testing if requested by law enforcement. Implied consent only applies to the chemical test, as implied consent does not apply to the preliminary breath test, which may be conducted on the side of the road and may be offered as part of field sobriety tests.  

    If a driver either refuses to take the chemical breath test or tests with a blood alcohol concentration (BAC) of .08 percent or higher, the driver will face automatic suspension of his or her driver’s license by the Illinois Secretary of State. One of the most important facts to consider is that the looming suspension period is more severe for those who refuse chemical testing compared to those who fail the test.  

    Length of Suspension 

    The duration of the license suspension depends on whether the offense is the driver’s first and whether the driver decided to submit to the chemical breath test. The specifics are as follows: 

    First Offense (No DUI arrests in the past five years): 

    • Failing the breath test = 6-month suspension. 
    • Refusing the breath test = 12-month suspension. 

    Non-First Offense (DUI arrest within the last five years): 

    • Failing the breath test = 12-month suspension. 
    • Refusing the breath test = 3-year suspension. 

    Illinois enforces stringent penalties for DUI offenses, with harsher consequences for those who refuse chemical testing. However, as a legal strategy, first-time offenders might consider refusing the test and seeking legal representation.

    If your license is suspended for DUI, the suspension is ultimately subject to what kind of defense your attorney has in order to work out a plea bargain with prosecutors, whether you are ultimately found guilty of the offense, and whether your attorney is able to get your case dismissed.  

    There are several different factors that could be in play that attorneys look at when evaluating a DUI case. For example, weather conditions, physical conditions, improper procedures, and improper handling of a breathalyzer could all help develop a defense to a driver’s charges. An experienced DUI attorney can help you determine what your best defense would be.  

    Disclaimer: The information provided on this blog is intended for general informational purposes only and should not be construed as legal advice on any subject matter. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship. Each individual's legal needs are unique, and these materials may not be applicable to your legal situation. Always seek the advice of a competent attorney with any questions you may have regarding a legal issue. Do not disregard professional legal advice or delay in seeking it because of something you have read on this blog.
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