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DUI Breathalyzer Test Refusal

DUI Breathalyzer Test Refusal

DUI Breathalyzer Test Refusal.  Should Illinois drivers pulled over for or arrested for DUI refuse a breathalyzer test?  Wheaton DUI lawyer Marilyn Miller wants you to know your rights when pulled over or arrested for DUI.

Probable Cause to Arrest

A police officer needs probable cause to arrest a driver for DUI. Probable cause exists when a reasonable person concludes that a driver has committed an offense.  This conclusion can arise from the officer’s observations of the driver’s manner of driving as well as observations of the driver after the traffic stop.  These observations can include the driver’s slurred speech, blood shot eyes, strong odor of alcohol, admission to drinking, fumbling with license, and inability to follow instructions.

Field Sobriety Tests

Typically, an officer will require a driver to complete the Field Sobriety Tests or FST.   These tests may include a Horizontal Gaze Nystagmus Test or HGN, a Walk-and-Turn test, and a One-leg Stand test.  The officer will also ask the driver to take a Preliminary Breathalyzer Test or PBT which consists of a hand-held device for testing the driver’s breath at the scene.  The PBT provides an estimate of the blood-alcohol level of the driver.   Therefore, the PBT helps establish probable cause for a DUI arrest.  By law, a driver may refuse to take this Preliminary Breathalyzer Test without consequences to his driving privileges.

Consequences of Refusing Breathalyzer

After a driver is actually arrested for DUI, the driver cannot refuse the official breath, blood or urine test without consequence.  The official chemical test is typically given at the police station after an arrest for a DUI.  If a driver is arrested for DUI and refuses to submit to a such test, the driver faces a 12-month statutory summary suspension of his driving privileges.  Those arrested for DUI who submit to the tests face a 6-month statutory summary sususpension for a failed test (i.e., a chemical test which disclosed an alcohol concentration of 0.08 or more, or any amount of a drug, substance, or intoxicating compound in such person’s breath, blood, or urine resulting from the unlawful use or consumption).  625 ILCS 5/11-501.1(a) and 625 ILCS 6-208.1(a).

Admissibility of Field Sobriety Tests

As to the HGN test, the prosecution has to establish the scientific basis for the reliability of this test.  However, the Court will admit the FST evidence based solely only the officer’s personal observations and conclusions.

The driver can agree to take FST and the PBT if he/she can pass the tests.  However, drivers often find it difficult to perform the FSTs even when when sober.  In addition, the Court may easily admit the FST tests based on the officer’s personal observations and subjective conclusions. As to the PBT, it is an estimate only of the blood-alcohol level of the driver.  Moreover, the PBT is not admissible by the prosecution at the trial of an alleged DUI offense.

The police officer may record the FST on a video camera mounted in a squad car.  Further, the arresting officer must conduct all tests in conformity with the National Highway Transportation and Safety Administration (NHTSA) manual.  The validity of these tests is compromised if not properly administered as set forth in the NHTSA. A experienced DUI lawyer may cross exam the arresting officer on this issue.

If the driver believes that he can pass the Field Sobriety Tests and Preliminary Breathalyzer Test, then the driver can agree to take the tests.  However, the driver should politely refuse all tests if there is a possibility that the driver cannot pass the tests.