Should an Illinois DUI Suspect Consent to a Chemical Test?

The general advice I give is to refuse to take the test, unless you have had no more than two beers or glasses of wine over two hours or more, or one mixed drink.

As a DUI defense attorney, the most common question I get asked is whether a DUI suspect should consent to chemical testing. If only there was a way of knowing what your blood alcohol level (“BAC”) would be before taking the test.

But there isn’t. All you can do is make an educated guess.

What did you drink?

My general advice is to refuse to take the test, unless you have had no more than two beers or glasses of wine over two hours or more, or one mixed drink (not counting “kitchen sink” drinks like a Long Island Ice Tea, which will put you over the limit halfway through the first drink). According to the Illinois Secretary of State, a man of average weight would need to consume four beers within an hour to get to a blood alcohol content (BAC) of 0.08, but I am dubious of that figure. Three beers or more and I would not recommend taking a test for at least one hour for each drink has passed.

The .08 BAC .

If you take a test which shows a result over 0.08, your case will be much harder to defend than had you refused. And prosecutors will be less likely to cut you a break, since a number above .08 BAC gives them the upper hand. Also, keep in mind that you can still be prosecuted and convicted for a DUI with a BAC under 0.08. Under the law in Illinois, you can be found guilty of a DUI if you have consumed any amount of alcohol that renders you incapable of driving safely. That amount can be under 0.08. Once you get to 0.08, there is a presumption that you were intoxicated.

Consequences of Refusal

Yes, there are consequences for refusing to take the test. If this is your first DUI arrest within the past five years, you will receive a one year summary suspension of your license. If you have had a DUI or summary suspension within the past five years, a refusal will lead to a three-year summary suspension. However, these suspensions can be challenged in court, and if you are first time offender, you can get a Monitored Device Driving Permit (“MDDP”) from the Secretary of State, which will allow you to drive 24/7 during your suspension so long as you have a Breath Alcohol Ignition Interlock Device (“BAIID) installed on your vehicle. In addition to the suspension, the prosecutor can use your refusal to submit to chemical testing as evidence of your consciousness of guilt. Most DUI attorneys would agree with me that a refusal and its consequences are preferable over a bad BAC result.

Would you rather risk an extra six months of driving with a BAIID in return for a not guilty on a DUI? Considering that the cost of a DUI fine, plus court ordered alcohol treatment, court monitoring and other expenses might run you $4,000 in the short run, and a lot more in lost job opportunities in the future, I think it is a no-brainer. Do not blow unless you are very confident that you will be well under 0.08.

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