Should one use the Breathalyzer when stopped for DUI

Wed, 18 Mar 2009 09:00:28 EST

I recently received a question from a client. The client stated that, I had a beer or so before I left the restaurant. I droveonly a couple of miles, and I know that I was doing the speed limit. I know Ididn’t cross the double line on the pavement. Suddenly, I was pulled over, andI had to decide immediately whether I should take the Field Sobriety Tests andblow 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 toalso examine.

You are faced with the classic quandary to “blow or not toblow. That is the question. Well,whether it is nobler in the minds of men to supply more evidence to lawenforcement than you are required to do. The U.S. Constitution provides you with the absolute protection againstself-incrimination, and blowing into a Breathalyzer can be determined as potentialself-incrimination. Pursuant to 625 ILCS5/11-501.1, a person who refuses to submit to a breathalyzer test will receiveat least a six month statutory summary suspension. However, if a person does not submit to thebreathalyzer test, then they also do not face the additional evidence of areading that states that they were over the 0.08 limit for alcohol. Further, the person does not receive theadditional count of driving over the 0.08 limit. The Illinois Driving under theInfluence Statute has a component in which the State may charge the person fordriving under an impairment which would jeopardize safety, and the State maycharge a separate count of blowing into a Breathalyzer and the read out beingmore than 0.08. In the breathalyzersituation, even though the person charged with DUI may receive a statutorysummary suspension for simply refusing the breathalyzer, the person still doesnot have the added burden of further evidence of their inebriation, by havingthe specific number attached to them. Further, with a good attorney, the charged person always has the abilityto fight the statutory summary suspension during a Petition to Rescind theStatutory Summary Suspension Hearing.

I know that you might be thinking that during your DUIevaluation, 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, youmight still be in a position refute the DUI charges, because you may not havethe burden of evidence of your breath in a breathalyzer. If you were videotaped during the arrest, andthe videotape shows that you were functioning without impairment, and you toldthe officer that you did not feel, due to injury or other, that you were ableto participate in the Field Sobriety Tests, then the evidence against you ismuch smaller. The only evidence that maypoint to impairment might be your driving. Further, if the driving does not reflectimpairment, then if this matter went to a full trial, you might be in aposition for a “not guilty verdict on the DUI charge. This then means that you do not have to facethe higher number on the DUI Evaluation or the Statutory SummarySuspension. Therefore, if we must decide on “to blow ornot to blow. It seems “not blowing" hasto be taken under careful consideration.

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Should one use the Breathalyzer when stopped for DUI