If you’re confused about the law surrounding breathalyzer and blood alcohol content (BAC) testing in Illinois, you’re not alone. Most people know that they’ve “impliedly consented” to testing by driving within the state, but also know they can generally refuse chemical testing. It’s not a crime to refuse breath or blood testing, but there are penalties for refusal.

These apparent contradictions can leave drivers with only the vaguest understanding of the law. But, every driver should know both his or her rights and the potential consequences for refusal.

What is Implied Consent?

In Illinois, anyone who operates a motor vehicle on public roads is deemed to have consented to testing for alcohol and other drugs and intoxicants. In simpler terms, by driving in Illinois, you agree to chemical testing.

However, many people are not aware that this implied consent comes into play only when a police officer has arrested you for driving under the influence (DUI). And, the officer must have probable cause for the arrest. A driver who has not been arrested has the right to refuse chemical testing, and is not subject to license suspension based on that refusal. If summary suspension is ordered, lack of probable cause and not being under arrest are both among the small number of specific defenses permitted at a hearing on the summary suspension.

Chemical Testing for Alcohol

Breathalyzer testing is the most common chemical test employed, and people often speak in terms of “breathalyzer refusal.” However, the Illinois statute specifically extends implied consent to chemical testing of “blood, breath, other bodily substance, or urine.” In fact, the police department or other law enforcement agency may request additional testing of urine or other bodily substances, even after a breath or blood alcohol test has been administered.

If you are unconscious, Illinois law specifies that you are deemed not to have withdrawn consent, and law enforcement may obtain samples for testing without waiting to consult you when you regain consciousness. But, under most circumstances, you won’t be forced to comply with breathalyzer or other chemical testing for alcohol. Instead, the officer will advise you of the consequences of refusal, and request that you comply.

Forced BAC and Other Chemical Testing

Under certain limited circumstances, a driver may be compelled to submit to chemical testing for alcohol or other intoxicants. For example, a driver who is arrested with probable cause for DUI in connection with an accident that causes injury or death to another person does not have a right to refuse chemical testing.

In theory, a police officer can obtain a warrant to draw your blood or otherwise test for alcohol and other intoxicants whenever he or she has probable cause to believe that you are operating a motor vehicle under the influence. However, as a practical matter, this rarely occurs. Since alcohol metabolizes fairly quickly, it is often difficult for law enforcement to obtain a warrant and secure a medical professional to take a sample quickly enough to gather meaningful evidence.

Should You Take a Breathalyzer Test?

Many people ask whether it is better to take the breathalyzer test or refuse. Deciding how best to proceed if you’re arrested for driving under the influence requires understanding what will happen if you refuse the test, and what will happen if you take it.

Consequences of Chemical Test Refusal after a DUI Arrest

An Illinois driver who refuses a chemical test is subject to a 12-month suspension of his or her driver’s license. While this suspension is called a “summary suspension” and often described as “automatic,” a driver who receives notification of a summary suspension based on breathalyzer refusal or other chemical test refusal is entitled to a hearing.

The issues to be considered at the hearing are limited by law and are very narrow. However, in some cases, it is possible to defeat a refusal-based suspension. Some examples include:

• Proving that the driver was not under arrest when the refusal occurred
• Proving that the law enforcement officer did not advise the driver of the consequences of refusal
• Proving that the driver did not actually make a knowing refusal

In most circumstances, however, a driver who is arrested for DUI and refuses chemical testing can expect a 12-month driver’s license suspension.

Impact of Refusal on the DUI Case

The main reason many drivers want to refuse the breathalyzer or other chemical test is that they believe it will be difficult or impossible to convict them of driving under the influence without a chemical test result. While it’s true that it may be more difficult for the prosecution to prove a DUI charge without a chemical test result, it’s far from impossible.

Typically, two charges are filed against a person arrested for DUI. One is known as a “per se” violation, and requires proving only that the defendant was operating a motor vehicle with a BAC of .08% or greater. However, without a BAC measurement, the driver may still be convicted of “driving under the influence of alcohol” (or similar language with regard to drugs and other intoxicants).

Proving that a driver was under the influence is easier with a breathalyzer or other chemical test result, but BAC isn’t always required for a conviction. The judge or jury can be advised of the refusal, and the prosecutor will introduce other evidence such as:

• The results of any field sobriety tests administered
• The officer’s observation of any signs of impairment, such as slurred speech or unsteady gait
• Other observations such as bloodshot eyes or an odor of alcohol

Many people who refuse breathalyzer and other chemical tests are convicted of DUI based on this type of evidence.

If you have been charged with a DUI or have questions about Implied Consent please contact attorney J. Brick  Van Der Snick at 630-845-8200.