Breath Testing Following Arrest for DUI: Facts and Rights

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In the unfortunate event that you are stopped by the police and accused of driving under the influence , you should be aware of the types of tests that you may be asked to undergo and understand the consequences of agreeing versus refusing to undergo these tests.

The three types of tests are field sobriety tests, portable breath tests, and evidentiary breath tests. The first two types of tests are conducted at roadside and are used, along with a police officer’s other observations, to determine if the officer has probable cause to place you under arrest. This post will focus on the post-arrest evidentiary tests.

Understanding the Types of Evidentiary Tests for DUI

If you are arrested for DUI, you will be taken to a police station and asked to submit to evidentiary testing. Officers will perform chemical testing of your breath, blood, urine, or other bodily substance to determine your blood-alcohol content (BAC) or the presence of other intoxicants. Most commonly, a stationary or desktop breathalyzer machine will be used. Urine testing at the police station or blood testing at a hospital are other common testing techniques.

The Difference Between Preliminary and Evidentiary Breath Testing Evidentiary testing, which is the breath test after you have been arrested, is considered accurate enough to be admissible in a criminal court trial.

In contrast, the preliminary breath testing (PBT) done at roadside with a portable breathalyzer is NOT admissible as evidence against you in a criminal court trial, because it is not considered accurate enough. However, a PBT test is still admissible against you at your court hearing contesting your license suspension. Which means the State does get to use the PBT result in arguing to a judge that your license should remain suspended due to the DUI arrest.

In addition to being used against you in argument to keep your license suspended, PBT results over the legal limit gives the police a solid source of probable cause for an arrest, in addition to field sobriety tests and other observational evidence.

Should I Consent to Evidentiary Testing?

If you refuse to submit to testing, you deny the police evidence of your exact BAC or the presence of other intoxicants. This may be advisable if you are sure you are significantly over the legal limit. However, the penalty for refusing evidentiary testing is an automatic one-year suspension of your driver’s license for a first offense, increasing to a three-year suspension for a repeat offense within five years. In addition, you may still be convicted of the criminal charge of DUI based on other evidence.

If you do submit to testing, the results may prove favorable for you. Possible outcomes include:

• If your BAC is below .05, and you pass the tests for other intoxicants, you are judged “not impaired” and should not be charged with DUI, nor will your driver’s license be suspended.
• If your BAC is between .05 and .08, your license will NOT automatically be suspended. However, you may still face a criminal DUI charge, depending on what other evidence of impairment the police have documented.
• If your BAC is over .08, you will face an automatic license suspension of six months for a first offense (longer for a repeat offense), and you will also face a criminal DUI charge.

Please note that commercial drivers are held to stricter standards.

Protect Your Rights with a Skilled Joliet DUI/Traffic Violations Attorney

Whether you submit to testing or not, you may still be able to avoid a DUI conviction or reduce the consequences you may be facing. To protect your rights, consult a knowledgeable Will County DUI defense attorney as soon as possible. Contact the Law Offices of Jack L. Zaremba at 815-740-4025 for a free and confidential consultation; phone calls are answered 24 hours a day.