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What Are the Risks When Refusing a Breath Test in Illinois?As the state of Illinois continues to emerge from the COVID-19 lockdown, more and more people are starting to venture to the state’s bars and restaurants once again. This means that patrons again have access to establishments that sell alcoholic beverages. If you decide to go out and enjoy a few drinks with a small group of friends, you should know that police departments around the region are on the lookout for drunk drivers. As a result, you could be stopped and asked to take a breath test to make sure that your blood-alcohol content (BAC) is under the legal limit. Regardless of how much you have had to drink, refusing a breath test under certain circumstances could lead to serious consequences.

Illinois’ Implied Consent Laws

When you drive on the public streets and highways of Illinois, state law presumes that you have given your “implied consent” to submit to BAC testing. In the course of a traffic stop, the officer may request a preliminary breath test as part of his or her efforts to determine if there is probable cause to arrest you for driving under the influence (DUI). If the officer establishes probable cause and arrests you, you will be asked to submit to an evidentiary BAC test.

There is an important distinction between the two types of testing. Preliminary BAC testing is not generally admissible as evidence in court, and you can refuse a preliminary BAC test with no formal consequences. Of course, your refusal is likely to make the officer look a bit harder for other indications that you are intoxicated. Once you are arrested, however, things change dramatically. If you refuse an evidentiary BAC test subsequent to an arrest on suspicion of DUI, you will almost certainly lose your driver’s license.

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McHenry County, Crystal Lake, Crystal Lake IL, criminal defense, attorney, lawyer, Driving under the influence is a criminal offense and is treated seriously under Illinois law because of the danger it poses to yourself, your passengers, and other users of the road. First-time DUI offenses are no exception, though penalties are typically less severe in recognition that the behavior may indicate a one-time lapse in judgment rather than the start of a pattern of endangerment. If you have not been convicted of a DUI before, you may be concerned about the penalties you could face if it does happen to you.

Consequences for First-Time DUI Offenders

If a law enforcement officer suspects you of driving under the influence of alcohol or another substance, they may pull you over and ask you to submit to a field sobriety or blood alcohol content (BAC) test. If you refuse a chemical test, or if the results indicate impairment above the legal limit, you can be arrested and may face consequences including:

  • Court Supervision: First-time offenders may be sentenced to supervision instead of being convicted, which allows you to avoid some of the penalties for DUI and for the charges to be dismissed if you comply with the terms of the supervision order.
  • Fines and Court Costs: If you are convicted of driving under the influence, you can face the consequences of a Class A misdemeanor, including a fine of up to $2,500. You will also likely be responsible for paying for court costs associated with your trial.
  • Jail Time: Class A misdemeanors can carry a sentence of up to one year in county jail, which may be reduced due to good behavior.
  • Suspended or Revoked License: Your driver’s license can be suspended after a DUI arrest or court supervision order, and it will be revoked for at least a year in the case of a DUI conviction. First-time offenders will often be required to install a BAC ignition interlock device in their vehicle during a suspension. You may apply for reinstatement of your license at the end of the suspension or revocation period.
  • Court-Ordered Programs: For a first-time DUI offense, you may be required to participate in a drug or alcohol treatment program or a DUI education program as part of your sentence.
  • Increased Penalties for Exacerbating Factors: Even if you are a first-time offender, you can face higher penalties and sometimes felony charges if your BAC is 0.16 or higher, if you have a child passenger in your vehicle at the time of arrest, if you are driving under the influence in a school zone, or if your impaired driving causes an injury or fatality.

Contact a McHenry County DUI Defense Lawyer Today

Many first-time DUI offenders can avoid being charged with the full extent of the possible penalties with the help of an experienced defense lawyer. At Botto Gilbert Lancaster, PC, we can help you obtain supervision or negotiate for a fair sentence. For a free consultation with a Crystal Lake DUI defense attorney, call 815-338-3838.

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What Can Skew the Results of Blood and Breath DUI Tests?Though not the only form of evidence in a case of driving under the influence, the results from a chemical sobriety test can strongly support the claim that you were legally intoxicated at the time of your arrest. Unlike observations of your behavior, courts view the blood or breath test results as objective evidence because they measure your blood alcohol concentration and detect illegal substances in your body that may have impaired you. However, testing above the BAC limit does not always mean that you were intoxicated. Your DUI defense attorney will look into possible reasons why the test results may be inaccurate.

Breath Tests

During a traffic stop, a police officer who suspects that you are intoxicated may ask you to provide a breath sample using a portable device, such as a Breathalyzer. Breath tests are quicker and easier than blood tests but are also more prone to error:

  • Residue from substances such a mouthwash and breath fresheners may have trace amounts of alcohol in them that skew the test results.
  • The presence of nearby chemicals such as paint or adhesives can cause false results.
  • The test uses hardware that must be regularly calibrated to ensure accuracy and software that may be vulnerable to glitches.
  • The officer should conduct the breath test multiple to see that the results are consistent.

Blood Test

A police officer is more likely to take a blood sample at the police station or a hospital if you are being treated for injuries. While a blood test is considered the more accurate chemical sobriety test, there is still a possibility of inaccuracies:

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Auto-Brewery Syndrome Can Affect BAC TestAs odd as it may sound, it is possible for someone to ferment alcohol in their gut without having had any alcohol to drink. It is a rare condition known as auto-brewery syndrome or gut fermentation syndrome. People with this syndrome can be falsely suspected of driving under the influence of alcohol because a blood alcohol concentration test will give an inaccurately high reading. If you can prove that you have auto-brewery syndrome, you may be able to get your DUI charges dismissed, but this defense rarely applies.

How It Happens

People develop auto-brewery syndrome because of yeast or bacteria that grow in their gastrointestinal system – the same type of yeast that is used to ferment alcohol. Auto-brewery syndrome is most commonly diagnosed in people who have other conditions, such as diabetes, obesity, Crohn’s disease, and short bowel syndrome. Auto-brewery syndrome can cause the same symptoms as alcohol intoxication, such as:

  • Dizziness
  • Fatigue
  • Loss of coordination
  • Vomiting
  • Belching
  • Disorientation

Unlike with consuming alcohol, a person with auto-brewery syndrome cannot reasonably predict when these symptoms may occur. Physicians may treat the syndrome by prescribing anti-fungal medicines and recommending that the patient goes on a low-carbohydrate diet.

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Actual Physical Controls Allows DUI Charge Without DrivingDespite its name, driving is not a requirement for you to be charged with driving under the influence of alcohol or drugs. Illinois’ DUI law states that a person under the influence of an intoxicating substance cannot drive or be in “actual physical control” of a vehicle. This means that you could be charged with DUI for merely being inside your vehicle while intoxicated. It may not matter to a court that you did not intend to drive if you had the ability to drive the vehicle at a moment’s notice.

Circumstantial Evidence

Illinois law does not define what “actual physical control” is with a vehicle. Courts will judge whether a DUI defendant had actual physical control based on the details of each case. Relevant factors include whether:

  • The vehicle was running;
  • The keys were in the ignition;
  • The defendant possessed the keys;
  • The defendant was in the driver’s seat;
  • Anyone else was inside the vehicle;
  • The defendant owned the vehicle; or
  • There was any evidence that the vehicle had recently been driven.

The evidence against you grows stronger if you were sitting behind the steering wheel or the keys were in the ignition. You are less likely to have had actual physical control if the vehicle did not belong to you or someone who was not intoxicated was inside the vehicle with you.

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