Saturday, December 17, 2016

DUI and Breathalizer Tests

As a Rockford, Illinois DUI Attorney the question I am most asked is if a police officer asks someone to blow into the machine, should he?  The answer to this question is not as straightforward as it would seem.  To begin I would note that your 5th amendment rights state that you are not required to answer questions by the police or cooperate with their investigation if such answers or cooperation would incriminate you.  This protection extends into the courtroom in that you are not required to testify at your trial if you choose not to.  The fact that you have chosen not to answer police questions or cooperate with a police investigation into your actions may not be brought up at trial by the prosecution.  The fact that you have chosen not to testify at your trial may not be considered by the jury against you in any way.  As with all rules there are exceptions.  One exception falls into police investigations of DUI.  Essentially, as a condition of receiving your driver’s license and the privilege to drive in the State of Illinois you waived your right to refuse to cooperate in police DUI investigations.  This is often referred to as the implied consent law.   

The implied consent law states, as mentioned above, that upon receiving your driver’s license and, therefore, the privilege to drive you agree to waive your 5th amendment rights against self incrimination when a police officer as a reasonable suspicion that you may be DUI and he wishes to investigate further.  In this instance your refusal to cooperate with the police investigation by refusing to submit to field sobriety tests or submit to a breathalyzer test automatically gives the police probable cause to arrest you for DUI.  Further, such refusals may be held against you at trial.  The State’s Attorney may argue that the reason you refused to submit to the tests is because you knew the results would not be in your favor.  However, your failure to submit to either the field sobriety test or the breathalyzer may not be considered as conclusive evidence against you.  

When a police officer stops someone and suspects that person may be DUI he requests submission to field sobriety tests and breathalyzer for the purpose of gathering evidence against you.  Although other tests may be use the generally accepted field sobriety tests are the horizontal gaze nystagmus test, the walk and turn test and the one-legged stand test.  Should you submit to these tests and fail the police officer can now describe to a jury in great detail every instance of your failure.  He may testify how you stumbled, failed to touch heel to toe, failed to walk the proper steps and/or failed execute the proper turn during the walk and turn test.  He may testify how you swayed and kept putting your foot down during the one legged stand test.  He may further testify that the U.S. National Highway and Transportation Safety board has conducted many studies regarding these tests and they have been proven reliable to detect a DUI driver.  Cloaked in his air of authority and impartiality this testimony can be devastating depending on how badly someone actually performed during the field sobriety tests.    

Should you submit to a breathalyzer device and blow over .08 then the damage to your case is even more devastating.  The State of Illinois DUI laws state that the state may charge DUI in two ways.  The first is by alleging that because of your intake of alcohol or other drugs you were operating a motor vehicle while your ability to do so safely was impaired.  The second is by simply alleging that you were operating a motor vehicle while your blood alcohol concentration was above .08.  The second charging method is much simpler for the State to prove than the first.  Further, the state will argue that operating a motor vehicle while above the .08 limit gives rise to a statutory presumption that you meet the criteria of the first charging method of operating a motor vehicle while your ability to do safely has been impaired by alcohol.  With all they have seen and heard about DUI in their lifetime it is my opinion that people of any jury are likely to believe that a person driving with a blood alcohol concentration over .08 is not only in violation of the strict statute against such action but also of the general driving while impaired statute.  

It is not against the law for someone to drink and drive.  It is only against the law for someone to drive when he has had so much to drink that his ability to drive safely is impaired or his blood alcohol concentration is over .08.  How much someone can drink before meeting either of these criteria varies from individual to individual.  Also such factors as when someone ate last or how much and when a person last drank alcohol have an influence.  If you know that you are intoxicated beyond the point of passing either field sobriety tests or a breathalyzer test then my opinion is that there is no reason to give the police more evidence to use against you later.  If you know that you are the person who actually did only have two beers then, absent unusual circumstances, it is my opinion that you should pass the field sobriety test.  Should you pass the field sobriety test then, again absent unusual circumstances, the police officer will probably feel that there is not probable cause to arrest you for DUI and let you go.  If you are forced to ask yourself the difficult question of “did I have too much?” then, in my opinion, you probably did and would be lucky to pass.  Each individual is unique so each individual must make the decision based on the knowledge of possible outcomes, risk versus reward and the situation at the moment of decision time.  For additional information please visit

While every caution has been taken to provide my readers with the most accurate information and honest analysis, the information on this site is for general information purposes only.