Do I Have to Take a Breath Test if Pulled Over for DUI in Illinois?

If you are pulled over for DUI in Illinois you do NOT have to take the breathalyzer test.  There are consequences for refusing, but you do have the right to refuse breath testing.

Under Illinois law driving is a privilege, not a right. As such, the government can put restrictions and rules on your ability to drive. One of these rules is called “Implied Consent.” The implied consent rule states that by the very act of driving on an Illinois road you have given your “consent” to being tested for alcohol or drugs if you are pulled over. But this consent can be withdrawn by refusing to give a breath test.

Since you are required to consent to the testing, if you refuse there are penalties that come into effect against you: your driver’s license will be suspended for 12 months.  If this is your second time refusing to give a breath test within five years, your license will be suspended for 3 years.

These license suspensions can be challenged in court at a “Rescission hearing.” At this hearing you can challenge the legality of the suspension based on 5 different grounds:

  1. Whether you were properly placed under arrest for DUI.
  2. Whether the police had reasonable grounds to believe you were driving under the influence of alcohol or drugs.
  3. Whether you were properly warned about the consequences of giving or refusing the breath test.
  4. Whether or not you refused the breath test.
  5. Whether the tests showed that you had a BAC (blood alcohol content) above the legal limit (0.08) or had drugs in your system.

Most challenges to the suspensions are not successful. The law does allow a suspended driver to apply for and install a breathalyzer in their own car (known as the MDDP). With this device the suspended driver can drive at anytime and anywhere, as long as they first blow into the device to prove that they are not under the influence. However, during the first 30 days of the suspensions there is no driving allowed at all. This period of “hard time” is mandated by federal law.

You do in fact have the right to refuse testing in Illinois if you are pulled over for a DUI. You just need to be mindful of the consequences when you make your choice.

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