Everyday we see in the media or hear stories from friends regarding Driving Under the Influence (DUI) arrests where a person is pulled over by a police officer and the officer suspects the person has been drinking. These stories of arrests spark people’s interests and raises questions as to what you can and cannot do if you are pulled over by a police officer and he/she asks if you’ve been drinking.  This article is not going to tell you what you should do in that situation.  Its purpose is to describe the consequences of refusing or testing over 0.08 Blood Alcohol Content (BAC).  The decision to submit or refuse is up to each individual driver based on their own perceptions and factual scenario at the time they are requested to submit to testing.

In Illinois, police officers, based on reasonable, articulable suspicion that the driver is operating a motor vehicle on a public highway in Illinois while under the influence of alcohol, may question a driver and ask them to complete some form of blood alcohol testing.   Every person impliedly agrees to blood alcohol testing if the person possesses an Illinois driver’s license and is driving on a public highway in Illinois.  If you have an out of state driver’s license, you impliedly agree to submit to Illinois’ blood alcohol laws when you drive into Illinois and utilize Illinois public highways.  Due to this implied consent, if you refuse chemical and/or blood testing when it is lawful for the officer to request it, there are penalties the driver will face with regards to their driving privileges in Illinois.
On the other hand, as of 2011, there are no consequences against your driving privileges if you refuse to perform field sobriety tests, such as the Horizontal Gaze Nystagmus test, the walk and turn test, and the one leg stand test.  In addition to those tests, the officer will also request that you submit to a preliminary breath test (PBT) at the scene.  The motorist should remember that these tests are requested by the police officer to 1) determine if you are safe to drive so the officer can decide whether or not to let you go and 2) determine if there is probable cause to place you under arrest for DUI.   Moreover, the motorist should remember there are no driver’s license consequences if they refuse the PBT.  There are arguments to submit to the PBT and arguments for refusing.  That decision is left up to each individual motorist.  Consult your attorney for a more specific answer.  The answer typically depends on the present facts.

If you refuse those tests, it does not mean the officer will not have enough evidence to place you under arrest.  Smart police officers are trained to use other observations to develop probable cause to arrest for DUI, such as observing your movements while you get out of the car, speech patterns, bloodshot/glassy eyes, and asking you simple questions that a sober person would typically be able to answer with relative ease.  Nevertheless, by performing these field sobriety tests, you only stand to incriminate yourself even more than you have already.  That does not assume you are intoxicated and trying to hide evidence.  It simply means that the tests are difficult for healthy people who are not under the influence of drugs or alcohol.  We have all heard the line, “I couldn’t do these tests sober!”  While it is not advisable to make any statement like that, there is some truth to that honest, albeit incriminating statement. 

As of 2011, the following are administrative punishments against your driving privileges regarding breath alcohol testing:
     1.    If you refuse blood, urine and/or breath testing, your driving privileges will be suspended for a period of 1 (one) year if you are a first offender.  A first offender is a driver who, within the last 5 years of the present arrest for DUI,
·      Has NO previous conviction or court supervision for DUI, or a conviction or similar offense in any other state, and
·      Has NOT previously submitted to blood alcohol testing and disclosed a BAC over .08, and/or
·      Has not previously refused blood alcohol testing.
     2.    If you are not a first offender and you refuse on a subsequent DUI arrest within the 5 year period of the previous DUI arrest, your driving privileges will be suspended for a minimum of 3 (three) years.
     3.    If you submit to breath alcohol testing disclosing an alcohol concentration of .08 or more or any amount of a drug, substance, or intoxicating compound resulting from the unlawful use or consumption of cannabis  or any controlled substance listed in the Illinois Controlled Substances Act (such as cocaine, meth, exstacy, etc), and
·      If you are a first offender, your driving privileges will be suspended for a minimum of 6 (six) months; or
·      If you are NOT a first offender, your driving privileges will be suspended for a minimum of 1 (one) year.
Remember:  It is not a constitutional right to refuse this testing due to the fact that you face the administrative punishment of a driver’s license suspension for refusing or testing over 0.08 BAC.  Additionally, many courts in Illinois allow the jury to hear potentially incriminating evidence that you were allowed to “blow into the breath test” and since you refused, you received double the punishment had you blown and disclosed a BAC under .08.  Count on prosecutors arguing to the jury that you had the opportunity to disclose a BAC under .08 but the only reason why you refused was because you knew you would test over .08.  The counter to that argument is that in our country and state, it is the State’s burden to prove you are guilty beyond a reasonable doubt.  Additionally, you have a constitutional right to not provide any evidence that may or may not tend to incriminate you.  Thus, while you are looking at a suspension of your driving privileges, it is a choice that every motorist in that situation can make. Finally, if the officer asks you to submit to breath testing and you prefer blood testing at the hospital, the officer can mark you down as a “refusal” for refusing any test they suggest.  A real example is as follows:
  • A police officer pulls over a driver for speeding.  Police officer smells alcohol on driver after pulling them over.  Police officer arrests driver and driver blows into the breathalyzer and discloses a BAC of .11.  Then, the officer suspects the driver is also under the influence of drugs and asks the driver to go with the officer to the hospital for further testing.  The driver, upset it will take even longer, refuses to go to the hospital and tells the officer that he/she already blew into the breathalyzer and that should be good enough.  The officer then marks the driver down as refusing ANY chemical test and the driver now faces a longer suspension as a result of this “refusal.”  Even worse though, the driver already gave highly incriminating evidence of his guilt for DUI by blowing the breathalyzer earlier revealing his/her BAC at .11.  In that situation, the driver received a longer suspension for refusing ANY testing lawfully requested by the officer AND they [the driver] gave evidence the prosecutors will use against him/her in court.
Most officers will not tell you that you have a choice to refuse.  They will simply read you a “warning to motorist” form that states the consequences of refusing or testing over .08.  Pay attention when they read this form to you so you can be reminded or “warned” of the consequences of your subsequent decision.  After reading the form (typically word for word), the officer will ask you to submit to testing.  Some officers have been known to tell the driver they HAVE to blow or submit to chemical testing.  While that statement is not entirely true, the motorist should know what collateral consequences they will face if they submit to or refuse testing. 
If you have further questions, please visit our website at www.centralillinoislawyers.com and complete our online submission form. Or, you can call our office at 309-699-4691 or email us at how@howlawfirm.com.

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The attorneys at Hall & Rustom LLC represent clients throughout the entire state of Illinois, including, but not limited to, the cities of Peoria, Morton, Washington, Pekin, Eureka, East Peoria, Dunlap, Metamora, Bartonville, Bloomington, Normal and any legal matter located in Peoria County, Tazewell County, Woodford County, Marshall County, Stark County, Henry County, Knox County and McLean County.

Article Author: Jeffrey R. Hall

Jeff Hall is managing partner at Hall, Rustom & Fritz LLC and concentrates his law practice in Criminal Law, DUI & Traffic law, driver’s license reinstatement hearings and criminal record expungements.

If you have a legal question, email Jeff Hall.

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NCDD National College for DUI Defense: Jeffrey R. Hall