Breath Test Refusal Charge in Will County

Implied consent in Illinois

Driving in Illinois comes with a rule called implied consent. Anyone who drives or is in actual physical control of a motor vehicle on a public road is deemed to have agreed to chemical testing if arrested for DUI and the officer has probable cause. The test can be of breath, blood, urine or another bodily substance.

You can still say no. The law attaches a penalty to the refusal, and that penalty is a license suspension that is separate from the criminal case.

What the officer must tell you

Before you decide, the officer has to warn you. The statute requires a warning that a refusal will result in a statutory summary suspension of your privilege to drive. If you hold a commercial license, the officer must also warn about disqualification of that privilege.

The officer must also warn that a refusal after a crash that caused personal injury or death to another person will lead to a revocation. And the officer must warn that a test showing 0.08 or more will lead to a suspension. Whether these warnings were given, and how, is one of the issues a judge can review at a hearing.

How long the suspension lasts for a refusal

A first offender is someone with no earlier DUI conviction or court supervision, and no earlier test related suspension or revocation, within the 5 years before the current offense.

For comparison, a first offender who takes the test and fails gets a 6 month suspension. That gap is the reason refusal decisions matter. The Monitoring Device Driving Permit law covers first offenders who are subject to the suspension, and its list of exclusions does not include a plain refusal. A first offender whose privilege was revoked after a refusal is not eligible for that permit, but may apply for reinstatement or a restricted driving permit after one year from the effective date of the revocation.

Blood draw costs and the criminal case

The police investigation continues after a refusal. If a person is found guilty of DUI, the law makes the person responsible for the cost of the blood draw up to $500 when it was requested after a refused breath test.

Jeff reviews what the officer wrote and what the video shows, because small differences matter.

What happens next

1. Notice. The officer serves written notice of the suspension and takes your license, giving you a receipt that lets you drive until the suspension starts.
2. Sworn report. The officer sends a sworn report to the circuit court and the Secretary of State.
3. Secretary of State notice. The Secretary of State mails confirmation of the effective date to you and the court.
4. Day 46. The suspension starts on the 46th day after notice, unless it was rescinded first.
5. Court request. You can ask the Will County court to review the suspension within 90 days of notice. Filing does not pause the suspension.
6. Criminal case. The DUI case goes forward on its own track at the Will County Courthouse in Joliet.

Use our DUI deadline calculator to count your dates.

How Jeff defends this charge

• Checks whether you were properly warned about the consequences before the refusal.
• Asks whether you were really under arrest for DUI when the test was requested.
• Reviews whether the officer had reasonable grounds to think you were driving under the influence.
• Looks at whether your words or actions were a refusal under the law, or confusion or a medical problem.
• Files the petition to rescind before the 90 day deadline.
• Reviews video and reports for gaps between them.

No attorney can promise the judge will rescind. Jeff will tell you what the record shows.

Reviewed by Jeff McCarthy, Attorney, Inspired Law Group, 136 E 9th St, Lockport, IL 60441.