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Should you take a breathalyzer test or refuse?

     As a practicing attorney, many individuals ask me, if I have been drinking, should I take the breathalyzer test?  In Illinois, there are two types of breathalyzer tests.  The first is the portable breathalyzer test, which is inadmissible in any criminal proceeding.  The second is the breathalyzer test administered after you have been arrested for a DUI and taken to jail.  There are many important factors to take into consideration.  The most important determination is how much alcohol did you consume before being stopped by the police?  How much time has elapsed since your last alcoholic drink?  Did you eat any food since your last alcoholic drink?

     At the point the officer requests you take a breathalyzer, the officer has typically formed the opinion that you are under the influence of alcohol.  The officer would have smelled alcohol on your breath, noted that you have slurred speech and requested that you perform field sobriety tests.  If you had passed the field sobriety tests, he typically would not ask you to take the portable breathalyzer test.  In fact, if you passed the field sobriety tests, you have a strong argument that the officer did not have probable cause to arrest you.  If the officer did not have probable cause to arrest you, the case would be dismissed.

     If the officer arrested you for a DUI, you can expect to be handcuffed and taken to the police station.  The officer will read to you the warning to motorist and attempt to coerce you in taking the breathalyzer test.  If you take the breathalyzer, you may potentially give the police their strongest piece of evidence concerning your arrest for DUI.  If you take the breathalyzer and register a .08 or greater, your license will be suspended for a period of 6 months.  You will not be able to drive for 30 days of that suspension, but if you are eligible for a MDDP permit, you will be able to drive for the last 5 months with a BAIID device.  In addition, the odds of a DUI conviction rise because of this breathalyzer result.

     However, if you refuse the breathalyzer, the state will be missing their strongest piece of evidence and you may have a stronger case.  Your license may be suspended for one year, with the ability to drive with a BAIID device in your vehicle for 11 months.  

     To take a breath test is a personal choice for each individual who is stopped for a potential DUI.  If you are intoxicated, the best course of action to avoid a DUI conviction is to politely refuse to take any field sobriety tests.  Avoid talking as much as possible and refuse any and all breath tests.  Your license will be suspended, however the state has a difficult task in proving that you were under the influence of alcohol beyond a reasonable doubt.

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