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Should one use the Breathalyzer when stopped for DUI

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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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