Your driving was actually just fine, but your breathalyzer was well over the legal limit. Or maybe you swerved all over the lane, but you only blew a .04. Either way, you can be found guilty of DUI.

How can that happen? What can you do?

In Illinois, you cannot operate a motor vehicle if 1) you are under the influence of alcohol or 2) your breath or blood alcohol content (BAC) exceeds .08. Although you can only be convicted of one crime, these are two separate offenses, and you can be guilty of one but not the other. In other words, you could still be driving under the influence even though your blood alcohol was well under the legal limit. Or your alcohol tolerance could be terrific, but you could still be convicted of DUI because your breathalyzer was too high.

If you are stopped for DUI and have reason to believe you’ve had too much drink, it may not be a good idea to perform the field sobriety or breathalyzer tests. These tests can give the police enough evidence to prove that you were too drunk to drive. Blowing over .08 may give you a conviction for DUI even if your driving looked good, and even if you performed your field tests like an acrobat. Be advised, however, that refusing the tests can double the length of time for which the Secretary of State automatically suspends your license.

If you are charged with DUI, contact an experienced attorney immediately. An attorney can review your case for the best possible defense. In Illinois, you are presumed to be under the influence if you blow over a .08, but this is only a presumption, which an attorney can try to reverse. Maybe your driving was really steady, your speech was clear and your walk was normal. Maybe you’re not guilty of DUI.

But you could still be convicted for exceeding the legal limit. If you did blow over .08, an attorney can look at whether the police had probable cause to ask you to take the breathalyzer or even stop you in the first place. In limited circumstances, an attorney can ask for a dismissal when police failed to follow procedures.

If you have questions about this or another related criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

About mdkeenan

A criminal and school law attorney with over 17 years of experience, I have successfully represented clients all over the Chicago area. My practice includes DUI, felony, criminal, misdemeanor, homicide, internet crime, retail theft, traffic offenses, cyberstalking, drug crimes, weapons violations, domestic battery and juvenile crime. I also represent families involving school cases. My clients come from all over the Chicago area including Skokie, Wilmette, Niles, Northbrook, Glenview, Evanston, Winnetka, Highland park, Northfield, Park Ridge, Des Plaines and Mount Prospect. I am a member of the ACLU and the Illinois State Bar Association. I serve as a volunteer for First Defense Legal Aid. Se habla espanol.
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