Illinois’s Implied Consent Law: Refusal to Take a DUI Chemical Test

If you are arrested for driving under the influence, can you refuse chemical testing?

By , Attorney

Under Illinois's implied consent law, any person who drives or is in "actual physical control" of a motor vehicle is deemed to have given consent to chemical testing of breath, blood, urine, and/or another bodily substance.

Under What Circumstances Will a Chemical Test be Requested?

A police officer is authorized to request a chemical test if there's probable cause to believe the person is driving under the influence of alcohol, drugs, intoxicating compounds, or any combination thereof and the person:

The officer gets to decide whether to administer a breath, blood, urine, or other bodily substance test. After a blood and/or breath test has been administered, up to two additional tests of urine or other bodily substance can be conducted.

Consequences of Refusing a Test

Before administering a chemical test, the arresting officer must advise drivers of the consequences of refusing a test. A person who refuses a chemical test is subject to an administrative license suspension, which is known as a "statutory summary suspension." A motorist who refuses a chemical test is also not eligible for a driving permit during the suspension can be liable for the costs of a blood test, and evidence of the refusal can be used against the defendant in the criminal DUI case.

Statutory Summary Suspension

The Illinois Secretary of State will automatically suspend an offender's driving privileges for refusing to submit to chemical testing. The suspension periods are for:

  • one year, if the motorist doesn't have a prior DUI conviction or statutory summary suspension within the last five years, and
  • three years, if the motorist has a prior DUI conviction or a statutory summary suspension with the last five years.

The statutory summary suspension takes effect on the 46th day after the date the offender received notice. The officer will generally take possession of the offender's license at the time of the arrest and issue a 45-day driving permit.

Ineligible for Monitoring Device Driving Permit

Generally, a first offender whose driving privileges have been summarily suspended can obtain a monitoring device driving permit (MDDP). As long as the vehicle is equipped with a breath alcohol ignition interlock device (BAIID), the permit allows the person to drive for any purpose and at any time during the statutory summary suspension. However, drivers who refused chemical testing aren't eligible for an MDDP.

Liable for the Expense of Blood Test

A person who is subject to a chemical test of blood may be liable for the expense of the blood test (up to $500) if:

  • the person refused to submit to a breath test, or
  • there's probable cause to believe the test would disclose the use of drugs or intoxicating compounds.

But the offender is responsible for the costs of the blood test only if convicted of DUI in court.

Evidence of the Refusal Can Be Used Against a Defendant in the Criminal DUI Case

Another consequence of refusing a chemical test is that the prosecutor is allowed to present evidence of the refusal in the criminal case if the defendant is on trial for DUI. This rule allows prosecutors to suggest to the judge or jury that the refusal is evidence of the defendant's guilt. In other words, a prosecutor might argue that the driver refused chemical testing to conceal evidence of intoxication.

Deciding Whether to Submit to Chemical Testing

A motorist can generally refuse to submit to chemical testing, but the penalties for refusing are more severe than submitting to and failing a test.

There are also situations allowing an officer to administer a chemical test without the driver's consent. For example, if an officer has probable cause to believe a vehicle driven by a person under the influence has caused personal injury or death to another person, the driver must submit to a chemical test.

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