Wednesday, August 31, 2011

Is refusing to submit to DUI breath testing in Illinois good advice?

Probably one of the most common questions we get at Fagan, Fagan & Davis is "if I'm stopped for DUI in Illinois, should I take the breath test?" This is always a tough one. Part of the problem is that people don't know what to expect.

Certainly, drinking and driving is not illegal.

Go ahead, read that again and get it over with . . . you know you want to.
The legal limit is 0.08, true enough, but that's just a number - a bright line drawn almost arbitrarily. Not everyone is necessarily impaired at that level in fact, but in law, all states have passed laws to support the legal fiction that it is. So what is a person to do when confronted with the guessing game of figuring out whether they're anywhere near or over that arbitrary 0.08 number on the street in the middle of the night after being confronted by a rather . . . well, confrontational police officer?
Let's see what a State's Attorney has to say about the effect of refusing to submit to breath testing has on the ability to prosecute DuPage county DUI cases.

In a press release promising the latest "no refusal" weekend the State's Attorney notes that "refusal can make it more difficult to prosecute DUI cases."

He's quite right, of course.

However, when we advise clients not to submit to breath testing (or to submit to any performance tests either for that matter), the purpose isn't to frustrate prosecution. Given the amount of public pressure put on police and prosecutors by organizations such as MADD or AAIM, DUI is prosecuted aggressively. That starts on the street, where officers who observe even a slight odor of alcohol are highly reluctant to let anyone drive away. Motorists need to expect the police are out looking for DUI, but they do not have any obligation to assist in their collection of evidence. Polite and cooperative is quite enough, including a polite refusal to take any tests including a breath or chemical test (unless you've consumed absolutely no alcohol, have not consumed any food or beverage of any kind within about 20 minutes and are the picture of perfect health).

As for "no refusal" weekends, what to do? In our opinion, don't take the field sobriety tests, refuse to answer any questions regarding anything not contained on your driver's license, insurance or registration (which the police are entitled to see), and finally . . . make them get the warrant.

One last thing. Unless you want to risk a charge of obstruction of justice or resisting arrest, when the officer tells you to exit the vehicle, do so.

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