TO BREATHE OR NOT TO BREATHE: TAKING THE BREATHALYZER

You had a few drinks after work at the bar. You do not believe you are impaired. On the way home, however, you get pulled over by the police. The officer smells the alcohol and asks you to step out of the car. After fumbling through a couple field sobriety tests, the officer asks you to blow the portable breathalyzer. Should you?

The decision to take a breathalyzer is a personal one that cannot be made lightly. It is important to understand the consequences of taking or refusing this test.

In Illinois, if you are charged with driving under the influence, the Secretary of State issues an automatic suspension of your driving privileges. If this is your first offense, you can lose your license for six months. If this is your second or later offense, the suspension is one year. If you refuse the breathalyzer or field sobriety tests, however, the length of your suspension is much longer. For a first offense, you can lose your license for one year, and for a subsequent offense, you can lose it for three years.

So why not just take the breathalyzer? First, in order to convict you for DUI, the state must prove beyond a reasonable doubt that you were driving under the influence of alcohol. It is more difficult to prove that your driving was impaired if the state does not have a breathalyzer reading to hand the judge or jury. If you refuse the field sobriety tests, the state has even less to go on.

Second, the portable breathalyzer is less reliable than the breathalyzer at the police station. Therefore, you could have a higher reading in the field than is really the case. Factors such as mouth wash, regurgitation, trace quantities of blood in your mouth and improper calibration of the breathalyzer can affect your reading. If you fail the portable breathalyzer, you will inevitably be arrested. If you refuse the breathalyzer and the officer has nothing else to go on (in other words you passed the field sobriety tests or you refused them), the officer may possibly let you go.

If the officer arrests you, you will then be taken to the police station. The officer must read you a “Warning to Motorists” and observe you for 20 minutes before administering the official breathalyzer test. Even at this stage, you can refuse the test although you may be pressured to take it. Again, refusing the test will increase the length of your license suspension but may improve your chances of winning a trial.

Please see related our related posts “Can I drive? Getting Rid of Your Illinois Secretary of State Mandatory Suspension,” and “The ABCs of Defending Your DUI.” (Even if you are slightly over the Illinois legal limit of .08, you may still have a defendable case.)

If you have questions about your DUI or other criminal or traffic matters, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com