Should one use the Breathalyzer when stopped for DUI
I recently received a question from a client. The client stated that, I had a beer or so before I left the restaurant. I drove
only a couple of miles, and I know that I was doing the speed limit. I know I
didn’t cross the double line on the pavement. Suddenly, I was pulled over, and
I had to decide immediately whether I should take the Field Sobriety Tests and
blow into the hand held Breathalyzer, and the Station Breathalyzer. What should I do?
I provided them with the following information that I believe is important for the readers to
also examine.
You are faced with the classic quandary to “blow or not to
blow. That is the question. Well,
whether it is nobler in the minds of men to supply more evidence to law
enforcement than you are required to do. The U.S. Constitution provides you with the absolute protection against
self-incrimination, and blowing into a Breathalyzer can be determined as potential
self-incrimination. Pursuant to 625 ILCS
5/11-501.1, a person who refuses to submit to a breathalyzer test will receive
at least a six month statutory summary suspension. However, if a person does not submit to the
breathalyzer test, then they also do not face the additional evidence of a
reading that states that they were over the 0.08 limit for alcohol. Further, the person does not receive the
additional count of driving over the 0.08 limit. The Illinois Driving under the
Influence Statute has a component in which the State may charge the person for
driving under an impairment which would jeopardize safety, and the State may
charge a separate count of blowing into a Breathalyzer and the read out being
more than 0.08. In the breathalyzer
situation, even though the person charged with DUI may receive a statutory
summary suspension for simply refusing the breathalyzer, the person still does
not have the added burden of further evidence of their inebriation, by having
the specific number attached to them. Further, with a good attorney, the charged person always has the ability
to fight the statutory summary suspension during a Petition to Rescind the
Statutory Summary Suspension Hearing.
I know that you might be thinking that during your DUI
evaluation, you will automatically receive a higher number for you evaluation,
which is worse, simply because you refused the breathalyzer. However, if you examine the “big picture, you
might still be in a position refute the DUI charges, because you may not have
the burden of evidence of your breath in a breathalyzer. If you were videotaped during the arrest, and
the videotape shows that you were functioning without impairment, and you told
the officer that you did not feel, due to injury or other, that you were able
to participate in the Field Sobriety Tests, then the evidence against you is
much smaller. The only evidence that may
point to impairment might be your driving. Further, if the driving does not reflect
impairment, then if this matter went to a full trial, you might be in a
position for a “not guilty verdict on the DUI charge. This then means that you do not have to face
the higher number on the DUI Evaluation or the Statutory Summary
Suspension. Therefore, if we must decide on “to blow or
not to blow. It seems “not blowing" has
to be taken under careful consideration.
Craig Cunningham is a published author in the areas of family and criminal law. In addition to being an attorney, he is also a professor and will educate his clients regarding their case and the law. Clients are able to reach him through several outlets such as, email, cell phone, office line and fax. He will never keep his clients in the dark. With any new developments, he will definitely keep clients informed. For more information please visit at www.cunninghamlaw.cc
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