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The Right To An Attorney Before Taking A Breathalyzer Test


In this article, you will learn:

  • Do you have to answer an officer’s questions after you have been stopped?
  • Can the police force a blood draw?
  • What breath tests are admissible in court?

What Are Your Rights During A Chemical Test?

When you are taking a chemical test (whether it is breathalyzer, blood, or urine) there is no right to counsel at that point. The reason is that any suspension for being over the limit or refusing to take the test is an administrative suspension – which is a civil matter.  Only with criminal cases is there a right to an attorney. Therefore, there is no right to counsel prior to making a decision about the chemical test.

What Happens If You Pass All The Field Sobriety Tests?

You can still be arrested if you pass all the field sobriety tests. It is the police officer’s discretion if they arrest you or not. Once the evidence is reviewed, and your attorney believes that there was no probable cause to arrest, they can file a motion to suppress evidence. Sometimes that’s called a motion to quash arrest.

When looking at whether there is probable cause to arrest, the standardized field sobriety tests are just one factor and one piece of evidence to consider. Also, the standardized field sobriety tests are very specific and have an unusual scoring system.

This makes it unlikely that a civilian would know whether they passed or not. Many times, people think they did well on the tests. However, once your attorney has a closer look, they see that it was a technical failure based on the scoring criteria.

If you have a video and someone does look good on the video while they are performing field sobriety tests, this would be favorable to the case. However, just passing the field sobriety tests does not necessarily mean that there is no probable cause to be arrested.

Do You Have To Answer A Police Officer’s Questions About Drinking If You’re Pulled Over?

You do not have to answer questions about your drinking, although you do have obligations to answer questions about your identity. To this end, you are required to produce a driver’s license and insurance information. But as far as if you have been drinking or not, you have no obligation to answer that question.

What Happens To Your Driver’s License If You Are Issued A Temporary Driving Permit?

Your physical driver’s license is probably sent to the clerk and stored in the court file. Keep in mind that your physical driver’s license is not the controlling factor as far as if you are able to drive. That’s just used for identification. What matters is whether your license is valid or suspended as far as the Secretary of State is concerned.

Don’t be so concerned about where the physical license is. There is also an unfortunate but common practice by some police departments where they throw the physical driver’s license in the garbage and you have to get a new one.

How Long Is Your License Revoked After A Drunk Driving Conviction?

Upon conviction for a DUI – no matter if it is your first, second, or third, your license will be revoked by the Secretary of State for at least one year. This is an administrative revocation. It’s not a sentence that a judge gives you and it’s not a sentence that can be negotiated or reduced in any way.

There are ways to avoid a revocation that comes down to avoiding a conviction:

  • Being found not guilty at a trial
  • Getting a case dismissed
  • Pleading guilty to some other offense like reckless driving or something other than DUI

Unfortunately, if you are convicted of a DUI, your license will be revoked.

Can You Be Forced To Have Blood Drawn After Refusing Chemical Testing?

The police cannot force you to take a chemical test. However, upon a refusal to take a chemical test, the police can apply for a search warrant. If they obtain the search warrant, that search warrant would allow the non-consensual taking of your blood or urine.

Are Breath Tests Admissible In Court?

Portable breath tests or PBTs, are not admissible as substantive evidence of your blood alcohol content but can be admissible for other purposes. They are admissible to show probable cause for an arrest for DUI or reasonable grounds for a chemical test.

Will An Out Of State DUI Conviction Show Up In Your Record?

If you had an out-of-state DUI conviction while you had an Illinois driver’s license, then it was reported to the Illinois Secretary of State. All the states are part of the driving compact which says that each state is required to report back to the home state any driving convictions that occur in another state.

As such, your DUI will show up in records across the U.S.

For more information on Your Right To An Attorney Prior To Breathalyzer, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (815) 290-9170 today.

 

Donald N. Macneil, Esq.

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