The DUI Stop: The Decision to Take the Breath Test

 Posted on February 21, 2019 in Uncategorized

The most common question I am presented with when meeting with a new Illinois DUI client is:  “Should I have blown (provided a breath sample to the arresting officer)”?

My initial advice is always the same, “Do not put yourself in a situation where you have to choose!”  Use a designated driver, a ride share service or a taxi. Each of these alternatives is safer and cheaper than defending a DUI.

However, if you have you made the mistake of getting behind the wheel, and you are unsure if you would blow under the legal limit of .08, generally it is a good idea not to blow.  Keep in mind that there are risks associated with either decision.

Neither situation is ideal, but both have advantages and disadvantages. In Illinois you can typically be charged with Driving under the Influence of Alcohol two separate ways. Attorneys refer to these as an (a)(1) or an (a)(2) DUI, which simply refers to the statutory section invoked.  An (a)(1) DUI means you were operating a motor vehicle with a blood alcohol level of .08 or greater. An (a)(2) DUI means you were under the influence of alcohol while operating a motor vehicle. They sound the same, but there is a big difference between the two.

Illinois is an implied consent state, which means if you have been issued a ticket for DUI, you consent to give a breath, blood or urine sample to the arresting officer upon request. This is a condition of being granted driving privileges in the state of Illinois.  If you refuse to provide a breath sample and you are a first time DUI offender, your driver’s license will be suspended for a period of one (1) year. If you do provide a sample, you are a first time DUI offender, and your sample contains a BAC greater than .08 [or if you have a certain level of marijuana or other intoxicating compounds in your blood / urine], your driver’s license will be suspended for a period of six (6) months.

Consider this example:

You are at a red light minding your own business, when another driver strikes the rear end of your vehicle. You were clearly not a fault, but the police are called to issue tickets to the driver that rear-ended you and to draft an accident report. The policeman arrives on scene, asks for your driver’s license and insurance card, and notices an odor of alcohol on your breath. He asks you some questions, and then asks you to conduct Field Sobriety Tests, which you fail.  He places you under arrest for DUI. At the station you give a breath sample and your BAC is .09. You are going to receive two tickets for DUI, an (a)(1) ticket and an (a)(2) ticket.

Now consider the exact same fact pattern, but you are the driver in the car that rear ended the vehicle waiting at the red light. The police come and do an investigation and ask for your driver’s license and insurance.  Again, the police officer smells alcohol and conducts field sobriety tests, which you fail, and you are subsequently arrested for DUI. However, at the police station you refuse to provide a breath sample. You receive one ticket for DUI, an (a)(2) ticket.

Ironically, the driver in the first paragraph, (the one who was just minding his own business waiting for the light to turn green), has a more difficult road ahead of him in defending his DUI. This is because he has the (a)(1) citation, which is easier for the prosecution to prove. The prosecution merely has to prove two elements:

1. You were in actual physical control of a motor vehicle
2. You had a BAC of .08 or greater

This is a strict liability crime, meaning the prosecution does not have to prove you were driving poorly. They just merely need to prove your BAC was .08 or greater while you were driving. It is irrelevant how well you did on the field sobriety tests, how little sleep you got, that allergies made your eyes red or that you just drank one beer. All the State must to do is admit your BAC reading into evidence and show you were driving.

The driver in the second scenario did not give a breath sample, so the prosecution has a more difficult case. The prosecution must prove that driver was under the influence of alcohol while operating a motor vehicle. Thus, the prosecution is going to need the officer to testify about the accident, his or her observations, and how you performed on the field sobriety tests. In this scenario you hit the vehicle, but alcohol may not have been the cause. The prosecution will argue it is, but maybe you were texting or playing with the radio. The police officer noticed an odor of alcohol on your breath, but maybe you drank one beer with co-workers after work. Finally, the police officer will testify about how you performed on the field sobriety tests and most likely show a video of the same. However, there are many reasons people fail field sobriety tests not related to alcohol (tired, overweight, injuries, age, etc.). These arguments are all irrelevant for the driver who blew over .08.

The driver in the first situation may have only lost his license for six (6) months because he provided a breath sample, but his chances of beating the DUI are lessened by the fact that he provided the breath sample greater than .08, while the driver in the second scenario lost his license for twelve (12) months, but has a greater chance of beating the DUI.

Neither situation is ideal.  Again, the best alternative is to avoid putting yourself in the situation where you need to make this choice. The DUI towing fee alone is usually more expensive than the cost of a taxi or ride-share service. However, if you find yourself in this situation, please give me a call.  I will be happy to sit down with you and review your case.

Attorney Todd J. Polito has years of experience representing and defending people charged with DUI cases in DuPage County, Will County, Cook County, Kendall County and Grundy County. He and the attorneys of McNamara · Phelan · McSteen, LLC are ready to help you now. Please contact him for a consultation to review your case.