Do I need to take a breathalyzer test if I’m pulled over?
This is a difficult question to answer, because it depends on the situation you are in. Every time you drive a car in Illinois, you are giving “implied consent” to being tested for alcohol, if a police officer believes you are under the influence. As a result, there are possible consequences for refusing a breathalyzer.
However, each situation is unique and has several possible outcomes. In simple terms, there are two options:
Refusal before you are arrested for a DUI
You can refuse a breathalyzer test without penalty if you have not yet been placed under arrest for a DUI. You can also refuse a field sobriety test (the walk-and-turn, the one-leg stand, etc.) if you have not yet been placed under arrest.
These tests are often done while the officer is deciding whether or not to arrest you. They can use other evidence too, such as if they smell alcohol on you or slurred speech.
An important thing to remember is if you do agree to a breathalyzer test before being arrested, this evidence cannot be used against you if you go to court.
However, unless it’s obvious that you are sober, refusing this test will likely result in your arrest.
Refusal after you are arrested for a DUI
Refusing a breathalyzer test after you have been placed under arrest comes with penalties. You will receive an automatic one-year suspension of your drivers’ license if it is your first offense.
If you take the test and fail, and it’s your first offense, you may only have your license suspended for six months. In other words, refusing the test may be worse for you than taking the test and failing.
In some cases, if you fail a breathalyzer and it’s your first offense, you may be able to make a deal to keep driving with a breathalyzer monitoring device in your car that locks the ignition if you blow and fail.
Is there other evidence against you?
When you were pulled over, were you driving recklessly or erratically? Were you distracted by your phone? Did you swerve to avoid a cat? Did you consume any alcohol and, if so, how much?
There’s a lot to consider, which isn’t easy while you are staring an officer in the face. However, if you are certain that you are not drunk, in other words you haven’t consumed alcohol for at least four hours, your chances of coming out of the traffic stop without trouble are good. If you’ve had more then two drinks, use caution.
If you’ve had two beers, but you refuse the breathalyzer, a prosecutor can use that as evidence against you in court, even if you drank those two beers with a large meal and probably would have passed the test.
Breathalyzer flaws
If you take the test and fail, there’s still hope you won’t be convicted. A lawyer may be able to prove the test wasn’t calibrated correctly, or the device was too old, or that the officer didn’t perform the test correctly. In other words, if you’re arrested for a DUI, stay calm and enlist legal help.
