Testing In Illinois DUI Cases 2017-05-24T22:26:54+00:00

Testing in Illinois DUI Cases

Once a police officer suspects that a person is driving under the influence, the officer has a plethora of testing options at his or her disposal to help determine whether a violation of the Illinois DUI laws has occurred. Testing in Illinois DUI cases include field sobriety tests, portable breath tests, and chemical testing of a person’s breath, blood, or urine. Although a police officer will always ask to the point of almost demanding that you take all the DUI tests, it is your right to refuse the officer’s tests and any Illinois DUI attorney will always advise his or her clients to respectfully refuse any test offered by the police.

Field Sobriety Tests

The field sobriety tests a police officer may utilize during the Illinois DUI arrest process were created and standardized by the National Traffic and Highway Safety Administration (NHTSA). The standardized field sobriety tests created by NHTSA are the horizontal gaze nystagmus test (“HGN”), the walk-and-turn test, and the one-leg stand. These 3 standardized field sobriety are used for determining whether someone is drinking and driving. Other tests are available to test whether someone is driving while under the influence of cannabis or drugs.

Although the standard DUI field sobriety tests are not judged on a pass/fail basis, it is common to hear them referred to in such a manner. Police officers and prosecutors will make a big deal about the reliability of the field sobriety tests but in reality FSTs are unreliable and challenging their accuracy is a great way to beat a DUI charge. Ultimately, field sobriety tests are based upon an individual police officer’s subjective intent. Some police officers are much more stringent in their interpretation of what constitutes a clue of impairment than are others.

What are the Non-Standard DUI Field Sobriety Tests?

Although not as prevalent as they once were, non-standard DUI field sobriety tests appear from time to time especially when the DUI offender is unable to perform the standard DUI field tests. The non-standard DUI field sobriety tests, such as the Finger-to-Nose Test are less common these days since the creation of the standardized test by NHTSA.

Portable Breath Test

Aside from the field sobriety tests, a police officer may also ask someone to submit a breath sample in a portable breath-testing machine (PBT). The results of the PBT can be used as evidence in a hearing challenging the statutory summary suspension but the results are not admissible as evidence at a trial. There is absolutely zero benefit to submitting to a PBT and any Illinois DUI lawyer would always advice a client to politely refuse a PBT.

The portable breath test is typically the final test that is requested by the police officer. At the conclusion of these tests, a police officer must make a determination if probable cause exists to arrest the driver for a violation of the Illinois DUI laws. If the driver is arrested, the DUI arrest process continues at the police station. At the police station, the police officer will ask the driver to submit to an evidentiary breath test or to submit to chemical testing of the person’s breath, urine or blood.

Evidentiary Breath Tests

An evidentiary breath test commonly known as a breathalyzer has the potential to be the most damaging piece of evidence against you, which is why you should never submit to a breathalyzer. If you do provide a breath sample that is over the legal limit, it can result in you being charged and found guilty of a per se type of DUI. Also, providing a breath sample that is over twice the legal limit will also subject you to mandatory criminal penalties for the DUI in Illinois.

A breath sample is taken by a breathalyzer machine. The police officer administering the breath test on the breathalyzer machine, also known as a intoxilyzer, must have received training and be licensed to administer the evidentiary breath test. The breath sample only measures the amount of alcohol in your breath and it is not a breath test for cannabis.

Illinois DUI laws require that the police officer must give certain warnings to the driver before taking the breath sample. The warnings are contained in a document called “Warnings to Motorists,” which provides information on Illinois’s statutory summary suspension law. The Warnings to Motorists contain information on how long a potential summary suspension can last depending on whether you submit a breath sample or if you refuse to provide a breath sample.

Is the Breathalyzer Test Reliable?

The results of the breathalyzer test are not always reliable and attacking the results of the breathalyzer is one of the best ways to beat a DUI case. However, it is without a doubt that when a prosecutor can establish that the breath sample is reliable it is the strongest piece of evidence in the DUI prosecutor’s arsenal. However, before a breath sample can be admissible, the police officer taking the breath sample must follow the Illinois State Police regulations on administering a breathalyzer test.

To establish that the breathalyzer test and the breath sample taken by the police officer was reliable and valid, the DUI prosecutor will have to prove that:

  • The breath sample was taken on a breathalyzer machine that was approved for use to obtain a DUI breath sample by the Illinois State Police;
  • The officer taking the breath sample had a valid license issued by the Illinois State Police when the officer administered the breathalyzer test;
  • The breathalyzer machine used to take the breath sample was certified by the Illinois State Police to be accurate 62 days before and 62 days after the breathalyzer test was taken;
  • The officer operating the breathalyzer machine was adequately trained to administer the breath test;
  • The officer actually administered the DUI breath test according to his or her training.
  • The DUI offender was observed by the police officer for a period of 20 minutes prior to the DUI breath test
  • During the 20-minute observation period the motorist did not smoke, regurgitate, or drink anything.
  • The results of the DUI breath test can be identified as the breathalyzer test given to the DUI offender at the time of his or her arrest.

Chemical Testing of Blood or Urine 

A blood or urine draw is also a valid testing option under Illinois DUI laws. Although police officers typically request a breath sample when they suspect that a person is under the influence alcohol, the DUI laws authorize an officer to request a sample of your blood or urine. It is within the police officer’s sole discretion which test he or she wants you to perform and refusing will result in a statutory summary suspension of your driver’s license. Cases where a DUI offender submits to a blood or urine draw are referred to as “Blood cases.” Blood cases are much more involved than a typical DUI and involve medical records and many times they involve expert testimony.

Who Can Take a Blood or Urine Draw?

A blood or urine draw must be taken according to the regulations created by the Illinois State Police. The Illinois State Police regulations governing blood or urine draws state that a blood draw can only be taken at a hospital by a trained hospital staff member. A urine draw, however, can be taken at the police station by the arresting police officer.

If you do consent to a blood draw, the officer will take you to a local hospital where you will be admitted as a patient in the emergency room.

The hospital will treat you like any other patient and an emergency room physician will perform a medical examination. Your blood sample will be collected and placed into a DUI Kit, which will be tested by a forensic scientist employed by the State. Even if you refuse to submit to a DUI kit, any blood or urine that was collected for medical purposes can still be used to prosecute your Illinois DUI charge.

Can I Refuse to go to the Hospital Following a DUI Arrest?

Yes, except in limited circumstances such as traffic crashes involving great bodily harm you may refuse the police officer’s request to go to the hospital. Indeed, respectfully refusing any and all DUI testing is the recommended course of action that any competent DUI attorney would suggest.
Should I Refuse a Breathalyzer?

Most people arrested on an Illinois DUI charge are concerned about two things 1) avoiding jail and 2) keeping their driving privileges intact and avoiding a statutory summary suspension. Facing the choice of taking a breath test and facing a 6-month suspension or refusing and facing a year suspension, many people submit to the tests requested by the police officer. Although at the time it may seem like a good idea to submit to the testing and provide whatever sample the police officer wants and risk the shorter suspension, that decision is never a good idea. In most Illinois DUI cases, the strongest and sometimes the only piece of evidence that clearly establishes the State’s DUI case is a breath, urine, or blood sample. While providing a breath sample may lessen the summary suspension period, it also virtually guarantees you being found guilty of the DUI charge unless the sample can be excluded from evidence. Despite the potential longer statutory summary suspension period it is always a better idea to deprive the State of their most important piece of evidence. Especially when considering that all first-time DUI offenders are eligible for the MDDP and BAIID program.