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Illinois Implied Consent and Breath-Test Refusal

Rumors abound as to whether drivers stopped by police must submit to breath testing. In short, Illinois drivers may refuse to submit to breath tests. But, refusing a breath test or other testing that detects alcohol or drugs carries significant consequences and is not often a wise decision.

Illinois Implied Consent Law

Under Illinois' implied consent law, as a condition of receiving a driver's license, drivers in the state are assumed to have given their consent to be tested for impairing substances if they are suspected of driving under the influence of alcohol or drugs. These tests include a breath test using a portable device or breath, blood or urine tests that detect and measure the presence of alcohol or other drugs in a person's blood. If a blood test is used, it must be performed by a doctor or registered nurse.

When Breath Testing Happens

In general, police may stop a driver suspected of driving under the influence at any time. When pulled over, the driver is asked to perform field sobriety tests. If the police have probable cause to believe the driver is impaired, the driver is arrested and taken to the police station for chemical testing of his or her breath, blood or urine. Drivers also may be asked to blow into a portable breath-test device, such as a Breathalyzer, to test for the presence of alcohol before reaching the police station. In Illinois, drivers must be informed of the consequences of breath-test refusal when stopped by police.

Breath-Test Refusal

A driver may refuse to submit to testing, but the penalties for refusing a breath test are more severe than failing a breath test by having a blood-alcohol concentration greater than .08 percent. Refusal to submit to breath or chemical testing is an administrative offense that results in automatic suspension of an individual's driver's license. Under Illinois' statutory summary suspension law, drivers over age 21 who refuse breath testing have their licenses suspended for the following periods:

  • First test refusal: One-year suspension
  • Second test refusal within five years: Three-year suspension

Drivers under age 21 receive the following license suspensions for breath-test refusal under Illinois' Zero Tolerance law:

  • First test refusal: Six-month suspension
  • Second test refusal: Two-year suspension

These automatic license suspensions occur regardless of whether the driver is later convicted of driving under the influence (DUI). Upon arrest, police give the driver a temporary receipt allowing him or her to drive for 45 days. The individual's driver's license suspension then begins on the 46 th day after arrest and breath-test refusal.

Challenging Statutory Summary Suspension

A driver who receives statutory summary suspension of his or her license may request a judicial hearing to challenge the suspension. The hearing request must be made within 90 days of the refusal date, and the hearing must occur either within 30 days of the driver's hearing request or on the first court date for any DUI criminal charges.

In a hearing to challenge automatic license suspension, only four issues may be considered:

  • If the driver was properly arrested
  • If police had reasonable grounds to believe the individual was driving under the influence of alcohol or drugs while in physical control of the vehicle
  • If the driver was informed of the consequences of test refusal and actually did refuse testing
  • If the driver submitted to testing after being advised of the suspension and the testing showed impairment

Restricted Driving Permits

Drivers whose licenses have been suspended for breath-test refusal may qualify for limited driving privileges with restricted temporary licenses. According to the Illinois Secretary of State, restricted driving permits are only issued when driving is necessary for medical, education or employment purposes and no other form of transportation is available. In addition, not all individuals qualify for a restricted driving permit.

Some drivers with suspended licenses also may qualify for a Monitoring Device Driving Permit (MDDP). A driver with an MDDP must have a Breath Alcohol Ignition Interlock Device (BAIID) installed in his or her car that requires the driver to pass a breath test before the car will start. Once a BAIID is installed, a driver with an MDDP may drive without restriction as long as he or she passes the BAIID breath test.

Drivers suspected of DUI face severe consequences if they refuse or fail breath testing or other chemical tests. If your license has been suspended following a DUI arrest or refusal to submit to testing, promptly contact an experienced criminal defense attorney in your area.