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Breath test considerations in Illinois DUI arrests

It you are arrested for Driving Under the Influence (DUI) in Illinois, the police, upon having reason to believe you are under the influence of alcohol or other drugs, or have any amount of a prohibited substance in your blood, breath or urine, are authorized to ask to you submit to chemical testing to detect the presence of such substances. In the case of alcohol, such tests can be used to ascertain your blood alcohol level (BAL). 625 ILCS 5/11-501.1
The choice of tests is within the discretion of the officer; the accused’s request to provide a type of test different from that which the officer has demanded is deemed a refusal. People v. Kaegebein, 137 Ill. App. 3d 837, 92 Ill. Dec. 656, 485 N.E.2d 467 (2 Dist. 1985) The use of urine tests is normally confined to situations in which the officer believes the accused has drugs in his system, as urine tests do not provide an accurate BAL reading.

Breath tests are, unless the suspect is injured and taken to the hospital, normally used to determine the BAL. If the defendant is taken to the hospital and a physician draws blood for the purpose of medical treatment (“medical draw”) the results are admissible in the DUI prosecution. On the other hand, for the purpose of imposing a statutory summary suspension (“SSS”), the defendant is given the right to refuse.

Chemical tests (blood, breath or urine) that are admissible in the DUI prosecution must be administered under specific procedures, by certified machines and operators. In contrast, for SSS purposes, the officer is authorized to request a portable breath test (“PBT”). The results of such a test, or the refusal, are not admissible in the DUI prosecution. 625 ILCS 5/11-501.5
Every DUI lawyer hears the question, if the opportunity ever presents itself, should I take the test? A “first offender” is someone who has not, in the previous five years, been convicted of, received court supervision for, or incurred a statutory summary suspension arising from, a DUI (unless at the time of the prior offense the offender submitted to chemical testing and was found not guilty of the DUI).


A first offender who submits to testing is suspended for 6 months; after 30 days, that person is eligible for an Monitoring Device Driving Permit (MDDP). A first offender who refuses testing is suspended for 12 months and is eligible for an MDDP after 30 days.

The absence of a breath test makes a DUI prosecution for problematic and also removes the opportunity for the state to charge the defendant under the per se statute (which provides that even without evidence of impairment, it is per se illegal to drive with a BAL of .08 or greater). 625 ILCS 5/11-501(a)(1) From a cost-benefit basis, a refusal is generally the preferred option unless the driver is positive of passing and is confident of the accuracy of the testing instrument.

A non first offender faces a much more difficult decision. Taking the test will result in a 1 year SSS; refusing will cause a 3 year SSS. In neither case is the driving eligible to apply for any type of driving relief, not an MDDP and not an RDP obtained through a Secretary of State hearing. The worse of all worlds is when a non first offender refuses the test and is still convicted of DUI. That person will be without driving relief for 3 years. After those 3 years, the revoked driving must have a Secretary of State hearing.

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