Submitting to a breath test offered by a police officer has a variety of potential consequences. Of course, the question itself assumes that you have a choice – either agreeing or refusing – but do you? What is the difference between a breath test taken on the street after you are stopped by the police and the breath test offered back at the station after you have been placed under arrest for DUI? Are you required to take the physical field sobriety tests? Illinois DUI law is complex, our defense attorneys have provided guidance on these questions below.
What is the difference between a Preliminary Breath Screening Test (PBT) and an Evidentiary Breath Test?
A PBT is sometimes, not always, offered to drivers on the street before they are placed under arrest for DUI. The vast majority of PBT’s are not certified or calibrated the same way as the evidentiary breath test, which is offered at the police station. PBT’s can only be used for probable cause purposes to arrest a motorist for DUI but may not be used as evidence at trial.
The breath test offered post-arrest at the police station is often referred to as the ‘evidentiary breath test’. This test must be calibrated and administered by an officer who is a certified breath operator. The Illinois State Police regulate the calibration of the breath device and licensing of the officer who administers the test. The Blood Alcohol Concentration (BAC) result from this breath test is admissible as evidence at trial. Your decision to take or refuse this test also has potential driver’s license consequences, which are discussed below.
Can a Police Officer Force a Driver to Submit to a Breath Test in Illinois?
Illinois is an “implied consent” state. If you choose to drive in Illinois, by acting on that choice, you have given your implied consent to being tested for your blood alcohol content.
However, this does not mean the choice has been taken away from you, you still have an option to withdraw your consent and refuse to take a breath test. The officer cannot physically force you to take the breath test on the street or back at the station. Our article on forced Portable Breath Tests – PBTs provides additional information on the subject.
However, the driver should be aware that in certain counties in Illinois, upon refusal of the breath test, the police officer will request that a judge issue a warrant to take the driver’s blood. If the judge finds that there is probable cause to believe that the driver is under the influence and a warrant is issued, the driver can be taken to a medical facility to withdraw blood. There is generally no right to refuse testing in this situation.
Should I take the breath test if I am pulled over for a DUI?
So, now that you know you can refuse to take a breath test, should you? Most Chicago DUI lawyers would likely say: “do not agree to take a breath test under any circumstances!” While it may be true that recommending that you always refuse may generate favorable outcomes in certain cases, it is also true that every situation is unique and without knowing the specific facts, it is not that simple.
The general idea is that you are providing the police and prosecutor evidence that can be used against you in court if you agree to take the breath test. Your DUI defense attorney may have more leverage in court if the prosecutor does not have this key piece of evidence. On the other hand, a breath test result below the legal limit may ultimately be more beneficial than a refusal of the breath test. So, the best answer here is not a “yes” or “no” – the right answer is “it depends.”
The officer will typically try to persuade the driver to take a breath test based on the threat of a longer license suspension for refusing. Under the Illinois Summary Suspension law, if you refuse to take the breath test, there is a mandatory 1 year license suspension imposed for a first-time DUI offender. However, if you take the test and the result is .08 or above, a mandatory 6-month license suspension will be imposed. Many attorneys would suggest that the trade-off of a longer license suspension is worth lessening the chances of a conviction of DUI in court. In addition, there are still ways to try to challenge the suspension in court, and, if that is not possible, a driving permit is available under most circumstances to allow you to drive during the suspension period.
Should I take Field Sobriety Tests if I am pulled over for DUI?
Drivers under suspicion of DUI are almost always asked by a police officer to perform field sobriety tests. These tests include an eye test called the Horizontal Gaze Nystagmus (HGN) test, the walk and turn test, the one leg stand test as well as the Preliminary Breath Screening Test discussed above. You are absolutely not required to take any of these tests.
These tests are designed to gather evidence of impairment and give the officer probable cause to place the driver under arrest for DUI. While refusing these tests may still result in a DUI arrest, a DUI defense attorney may have a much better chance of challenging the arrest itself and/or the charge of DUI at trial. Importantly, unlike the evidentiary breath test administered at the station, there is no potential license consequences for refusing the field sobriety tests (including the PBT test) and, therefore, no reason to agree to submit to this testing.
Contact a Chicago DUI Lawyer From The Davis Law Group, P.C.
Our Chicago DUI attorneys have an in-depth knowledge and years of experience defending drivers charged with DUI throughout Illinois. Answers to many common questions can be found in the DUI section of our FAQ page. If you have been arrested for DUI, call us today at (847) 390-8500 or visit our contact us page. Our DUI attorneys frequently represent clients throughout Cook County, Lake County and DuPage County.