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Heavy-handed DUI tactics leave Kane County authorities red-faced

In Illinois, there are several consequences that flow from an arrest for Driving Under the Influence (DUI). The DUI statute, found at 625 ILCS 5/11-501, states, in part, that “(a) A person shall not drive or be in actual physical control of any vehicle within this State while:
(1) the alcohol concentration in the person’s blood or breath is 0.08 or more based on the definition of blood and breath units in Section 11-501.2;
(2) under the influence of alcohol”;
Therefore, you may be charged with DUI based upon the fact your blood alcohol level (BAL) was .08 or higher. The state is not required to prove that you seemed drunk (staggering, bloodshot eyes, etc).

Quite simply, it is illegal in Illinois to drive with more than .08% alcohol in your system. It is similar to speeding. The police do not have to show that your high speed made you a dangerous driver but simply that you were driving above the posted limit.

You may be tempted to conclude, if I never take the test, they cannot prove what my BAL was and therefore cannot convict me of driving with a BAL above .08. That strategy does carry with it some risks.

Refusing the test prevents the .08 prosecution, but it allows the state to argue you had a “guilty mind”. In other words, if you had nothing to hide, why didn’t you take the test? This could help the state convict you under the second definition of DUI, (part 2 above, “under the influence of alcohol”).

DUI under this section requires the state to prove that you were in fact impaired, since your refusal to submit to testing may be considered by the jury as evidence of a guilty mind 625 ILCS 6/11-501.2; P. v. Rolfingsmeyer, 101 Ill. 2d 137, 77 Ill. Dec. 787 (1984). By not submitting to testing, you forfeit the opportunity to show you were under the legal limit and you provide the state with an argument to use against you at trial.

Refusal of the test also carries with it driver’s license consequences in terms of the statutory summary suspension (SSS). The SSS law is found at 625 ILCS 5/11-501.1 and 625 ILCS 5/6-208 and 208.1


These laws in essence provide that at the time of a DUI arrest, the police may ask you to submit to blood or breath testing to determine your BAL. A reading of .08 or higher, or a refusal, will result in a suspension of your driver’s license for a period of time.

The length of the suspension is determined by two factors, the first being whether you submitted to, or refused testing. The second factor is whether you are a first offender under 625 ILCS 5/11-500.

I first offender who does not agree to testing is subject to a suspension for one year, twice as long as if he had tested. A non first offender who does not test receives a suspension for three years; one who tests is suspended for one year. In neither case can a non first offender obtain any type of driving permit.

Because police would prefer you test since it makes it easier to prosecute you, you can see that the law penalizes those who don’t test to longer sentences. Kane County, not happy with the number of refusals they were witnessing, adopted over the Halloween weekend a “no refusal” policy. If someone initially refuses testing, the police obtain a search warrant that requires the accused to provide a breath or blood sample. Continued refusal can result in being held in contempt of court and/or being charged with felony obstruction of justice. And if the police wish, they can drag the accused to the hospital and forcibly draw blood.

In at least one case, the “no refusal” policy backfired on Kane County. One person who was arrested and refused testing was eventually forced, either by a warranty or by being strapped down, to give blood. The result was .05.

On its face, it is clear that the driver was not over the legal limit. And with a BAL of .05, the law creates a presumption that you were NOT intoxicated 625 ILCS 5/11-501.2(b)(1)

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