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If I Am Pulled Over for a DUI, Do I Have to Take the Breathalyzer Test?

breathalyser_1962109cIt is required by Illinois law that you take a breath, urine, or blood test if you have been arrested for a DUI. The ?implied consent law? in Illinois states that if you are arrested lawfully by a police officer who believes you have been driving while under the influence of alcohol, then you consent to taking the chemical test of your breath, urine, or blood. This test will determine your blood alcohol content.

Right to an Attorney

You actually don?t have a legal right to speak with your lawyer before you are tested. The test must be given as soon as possible from the time you were last behind the wheel driving. Even though the officer that arrested you gets the choice in which test you take, you can also get more tests after that from the medical provider you choose.

DUI as a Passenger

You can be arrested for a DUI even if you are not the one driving. If you are actually controlling the car physically while under the influence of alcohol, that can be all the officer needs to arrest you. Physical control of the car depends on where you are sitting, if you have possession of the key, and if you are able to start and move the car.

In a previous case, a court in Illinois decided that a person did actually have physical control of the car despite the fact that he did not drive it to the location where they found him sleeping. This man was lying in the front seat of his car with his head in the passenger seat. The engine was running to keep the heat on. Even though this person had no intention of moving their car, the combination of the position he was in, the running engine, and evidence he had been drinking were all that was needed for the court to uphold the man?s DUI conviction.

Preliminary Breath Test

Illinois law states that you must give your consent to a ?preliminary? breath test even if you haven?t been arrested. This is like a field sobriety test. The police officer can use the results to establish probable cause that you were driving while intoxicated.

PLEASE NOTE: You don?t have to take the preliminary breathalyzer test, but refusing it won?t be to your advantage if the police officer has some other reason to suspect you have been drinking. Based on the officer?s reason, you could still be arrested and then be required to take the test under the ?implied consent? law.

If You Are Arrested?

After you have been arrested, the officer should let you know that your driver?s license will be suspended if you refuse to take the test. For your first refusal, the suspension will be for 1 year. If you have refused in the past, your suspension will be for 3 years. After your refusal, the police officer will send a form to the Secretary of State that details the refusal. You will then receive a notice of your suspension in the mail, and the suspension will begin 46 hours after you receive the notice.

DUI Conviction

In Illinois, the penalties for refusing a breathalyzer test are similar to those for a DUI including time in jail, fines, and community service. Refusing the test probably won?t help to avoid a conviction either. You could still be found guilty of a DUI even if the state doesn?t have proof. The prosecutor can and will use your refusal against you. They will argue that you knew you were legally intoxicated and guilty of DUI because you refused to take the test.

If you have been arrested for DUI you need to get help from an experienced Criminal Defense Lawyer. A DUI has serious consequences, especially if someone was hurt due to your negligence.

CONTACT the Law Offices of Barbara Sherer for a FREE legal consultation.

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