Can Breathalyzer Test Results Be Wrong?

Web Admin - Thursday, February 11, 2016

breathalyzer test results, Illinois Criminal Defense Attorney Many people who are facing DUI charges wonder if there was something wrong with the breathalyzer device they used when they were pulled over and arrested. How likely is it that breathalyzers give false positive readings? 

While breathalyzer testing is more accurate than other subjective field sobriety tests, breathalyzer tests can still be incorrect or inaccurate. If you believe that the breathalyzer test results that you gave prior to your DUI arrest are inaccurate, it is imperative to secure legal representation immediately.

Breathalyzer Testing

When you are pulled over in Illinois, and the police officer has a reasonable suspicion that you are intoxicated behind the wheel, the officer can administer a breathalyzer test. A breathalyzer test is a chemical test that assesses how much alcohol vapor is on the breath of the individual taking the test. This data generally correlates to an individual’s blood alcohol concentration level. 

Under Illinois’ Zero Tolerance law, 625 ILCS 5/11-501.8, any underaged driver who has a blood alcohol concentration reading of 0.01 or higher will lose his or her license and be arrested. Under Illinois DUI laws for individuals over the age of 21, 625 ILCS 5/11-501, drivers with a BAC of 0.08 are presumed to be driving while under the influence of alcohol.  

Illinois is an implied consent state, meaning that by using the roads in Illinois a driver automatically consents to be subjected to chemical testing when suspected of driving under the influence of alcohol. Individuals do have a right to refuse a breathalyzer test, but there are steep consequences for refusal. For instance, when a person refuses to take a breathalyzer test, his or her driver’s license is automatically suspended in accordance with 625 ILCS 5/6-203.1. 

Why Can Breathalyzer Test Results Be Incorrect?

There are a number of reasons why breathalyzer test results can be inaccurate. If one of the following scenarios applies to you and your breathalyzer test, you should consult with your DUI criminal defense lawyer to see if you can build a viable defense based on your situation. Breathalyzer test results could be inaccurate because:

- The breathalyzer device may be malfunctioning;

- Law enforcement improperly administered the test;

- Law enforcement failed to calibrate the breathalyzer device before it was used;

- You may have a health condition that makes you give a false reading on a breathalyzer test; or

- You consumed or used alcohol, but not of the type that could make you drunk or unable to operate a vehicle. Examples might include:

- Consuming cough medicines that contain high levels of alcohol;

- Wearing certain lip plumpers on your lips;

- Using certain vaping products (i.e., electronic cigarettes or e-cigs), which contain alcohol and can be so concentrated on the breath of a user that the user can produce a measurable reading on a breathalyzer; and

- Using certain mouthwash or breath sprays, which can artificially raise a person’s breath alcohol content. 

If you are facing DUI charges or you have reason to believe that the chemical testing administered to you prior to your or DUI arrest is inaccurate, please speak with an experienced Illinois criminal defense attorney today. Our firm serves the communities of the northwest suburbs, including Inverness, Arlington Heights, Long Grove, Barrington, South Barrington, Riverwoods, and Mount Prospect. 





Driver’s License Suspension

Web Admin - Thursday, December 03, 2015

driver’s license suspension, Crystal Lake Criminal Defense AttorneyFor many people, the ability to drive is very important. It allows individuals to travel easily to important places, like work or school, as well as to places for recreation or other leisure activities. Unfortunately, the right to drive can be taken away. When an individual has his or her license suspended, he or she may be tempted to continue to drive anyway, which can lead to significant consequences. 

Reasons for Suspension 

The Secretary of State (SOS) can suspend a person’s driver’s license for numerous reasons, including, but not limited to, the following: 

1. Three or more moving violations within a 12-month period;

2. Failure to appear in court for a traffic violation;

3. Ten or more unpaid parking violations;

4. Five or more unpaid automated traffic violations (being photographed for running a red light);

5. Failure to pay child support;

6. Failure to pay fines for five or more toll violations;

7. Causing an accident while driving without car insurance; or

8. Driving under the influence (DUI) of alcohol, an illegal substance, or prescription medication. 

The SOS notifies an individual of a pending license suspension by mail, sent to the last address on file at the SOS. As a result, it is important to update the SOS when a change of address occurs. 

Penalties for Driving 

An individual that chooses to drive while his or her license is suspended can be subjected to various penalties, including: 

1. The suspension period being extended for the same length as was originally imposed;

2. Possible license revocation;

3. Jail time;

4. Seizure of the car’s license plates; or

5. Immobilization of the person’s vehicle. 

Under Illinois law, driving on a suspended license is a Class A misdemeanor. The length of any jail sentence or amount of community service ordered depends on the reason why the license was suspended. For example, a person who drives after he or she had their license suspended for DUI can be sentenced to imprisonment for up to 10 consecutive days or 30 days of community service. 

Importantly, a second or subsequent violation becomes a Class 4 felony if the person is the proximate cause of an accident that results in personal injury or death to another person. A personal injury includes a Type A injury, which is defined as severe bleeding, distorted extremities, and any injuries that are require the person to be carried from the scene. A Class 4 felony is punishable by imprisonment of up to three years, with a minimum sentence of one year. 

It is important that you do not drive while your license is suspended—doing so can lead to serious penalties. Yet, this may be difficult, as our reliance on being able to drive our own vehicles is so strong. If you are facing charges of driving on a suspended license, please contact an experienced Crystal Lake criminal defense attorney today. Our firm provides help for individuals located in Crystal Lake, Schaumburg, Palatine, Des Plaines, Rolling Meadows, Buffalo Grove, Barrington, Arlington Heights, Inverness, and Deer Park.  

About the Author: Founding partner of Drost, Gilbert, Andrew & Apicella, LLC, Colin Gilbert, received his J.D. from Chicago-Kent College of law in 2005. Colin argues cases across many practice areas including criminal defense, collections, civil litigation, real estate law, and corporate law. Colin is an active member of the Board of Governors of the Northwest Suburban Bar Association and the Illinois Creditors Bar Association. He is currently Vice President of the Arlington Heights Chamber of Commerce, and is a Commissioner for the Village of Arlington Heights. Colin has a 10.0 Attorney rating on Avvo, and was named one of the 2014 “Top 40 Under 40” Trial Lawyers in Illinois by the National Trial Lawyers Association.



What Happens if You Fail a Field Sobriety Test, and What Happens if You Refuse

Web Admin - Tuesday, October 07, 2014

Illinois breathalyzer fail, Barrington DUI lawyerThe State of Illinois considers drunk driving to be a serious crime, and imposes high penalties for people found guilty of it. Often, drunk drivers are caught during a traffic stop after taking a breathalyzer test or failing a field sobriety test. Field sobriety tests are a battery of heuristic, qualitative examinations, like requiring the driver to stand on one foot for a certain period of time or to walk heel to toe.

However, drivers are not required to take these field sobriety tests because they qualify as a search under the Fourth Amendment. Additionally, these sorts of tests are not covered by Illinois' implied consent law. The implied consent law states that operating a motor vehicle is a privilege, not a right, and that by driving, a person consents to have his or her breath, blood, or urine tested for alcohol. This means that, while there are penalties for refusing one of those tests, those penalties do not apply to field sobriety tests. There is one exception to this rule, however. If a person has been issued a registry card for the state's new medical marijuana program, then the implied consent law does extend to field sobriety tests.

Penalties for Failure

Courts often view failing a field sobriety test as evidence that a person was driving under the influence. This evidence can often be strengthened by the police taking a chemical test. If either test proves to the court's satisfaction that the driver's blood alcohol content (BAC) exceeded 0.08 percent, then that person triggers the DUI penalties in Illinois. A first offense comes with a maximum fine of $2,500 along with a potential jail sentence of up to one year. Additionally, a first offender's license may be suspended for a minimum of six months.

These penalties increase for repeat offenders, with the license suspension going up to a five-year minimum for a second offense. A third DUI triggers a 10-year suspension and a prison sentence of between three and seven years. Additionally, every DUI offense comes with the penalty of having an ignition interlock device installed in the offender's car, which functions as a breathalyzer test to turn the car on.

Penalties for Refusal

Refusing to take the field sobriety tests does not trigger any penalties, unless the driver has been issued a medical marijuana registry card. However, there are penalties for refusing to take a chemical test. These penalties start at a one-year summary suspension of a person's driver's license. Additionally, if a person has previously had a suspension or a DUI conviction in the past year, then the penalty increases up to a three-year suspension.

DUI charges are a serious sanction in Illinois that can have long-lasting consequences. If you have recently been charged, seek help from an experienced Illinois criminal defense attorney. Our firm defends the rights of clients across the northwest suburbs, including in Barrington, Rolling Meadows, and Des Plaines.

About the Author: Founding partner of Drost, Gilbert, Andrew & Apicella, LLC, Colin Gilbert, received his J.D. from Chicago-Kent College of law in 2005. Colin argues cases across many practice areas including criminal defense, collections, civil litigation, real estate law, and corporate law. Colin is an active member of the Board of Governors of the Northwest Suburban Bar Association and the Illinois Creditors Bar Association. He is currently Vice President of the Arlington Heights Chamber of Commerce, and is a Commissioner for the Village of Arlington Heights. Colin has a 10.0 Attorney rating on Avvo, and was named one of the 2014 “Top 40 Under 40” Trial Lawyers in Illinois by the National Trial Lawyers Association.

Protecting Your Rights During a DUI Stop

Web Admin - Tuesday, June 24, 2014

palatine illinois dui lawyerThe Fourth of July is fast approaching, and like many major holidays it is one of the busiest days of the year for police conducting DUI traffic stops. This heavy police presence makes sense since the Insurance Institute for Highway Safety analyzed federal crash report data and discovered that the Fourth of July is often the deadliest traffic day of the year. In fact, the report reveals a nearly 40 percent increase in traffic deaths during the Fourth of July over the daily average. Given the seriousness with which police view this holiday, it is important for people to be aware of their rights during a DUI stop. People have two main rights that are pertinent to traffic stops: the right to remain silent and the right not to consent to a search.

The Right to Remain Silent

A person’s right to remain silent allows them to refuse to answer police questions during a traffic stop. This means that when the officer asks if the driver has been drinking or where the driver is coming from, the driver is not under any obligation to answer. However, invoking this right involves practical issues. Refusing to cooperate with the officer is technically allowed, but may make the traffic stop more difficult. Consequently, a driver’s being polite and courteous is key, when exercising these rights.

This right extends to refusing field sobriety tests as well. Police will often request that people perform some sort of physical challenge or coordination test to determine if they are sober. While refusing these tests will likely result in a longer traffic stop, it makes it more difficult for the state to pursue a DUI conviction.

Importantly, the right to remain silent is not the same as the right to lie. While the driver does not need to answer the officer’s questions, the information they do choose to provide must be truthful. Further, the right to remain silent also has an exception. The law requires drivers to produce their driver’s license, a copy of their registration, and proof of insurance upon an officer’s request.

The Right Not to Consent to a Search

In addition to the right to remain silent, drivers also have the right to refuse to give the officer permission to search their vehicle. This is not the same as a right not to have the vehicle searched. The officer may still search the car if they have probable cause to suspect something illegal, but evidence from unconsented searches is harder for the state to use at trial.

This right not to consent to a search also affects whether a person must submit to a Breathalyzer test. People do have the right to refuse such a test, however, Illinois has an “implied consent” law, which means such a refusal could result in a driver’s license suspension. Still, that may be preferable to a DUI conviction.

If you were stopped for a DUI this holiday, seek counsel from an Illinois criminal defense attorney. Our skilled team of lawyers defends clients in many northwest suburban towns like Rolling Meadows, Palatine, and Schaumburg.

About the Author: Founding partner of Drost, Gilbert, Andrew & Apicella, LLC, Colin Gilbert, received his J.D. from Chicago-Kent College of law in 2005. Colin argues cases across many practice areas including criminal defense, collections, civil litigation, real estate law, and corporate law. Colin is an active member of the Board of Governors of the Northwest Suburban Bar Association and the Illinois Creditors Bar Association. He is currently Vice President of the Arlington Heights Chamber of Commerce, and is a Commissioner for the Village of Arlington Heights. Colin has a 10.0 Attorney rating on Avvo, and was named one of the 2014 “Top 40 Under 40” Trial Lawyers in Illinois by the National Trial Lawyers Association.

License Reinstatement After Suspension or Revocation

Web Admin - Friday, October 04, 2013

License Reinstatement After Suspension or Revocation

The most common reason for having your driver’s license suspended is driving under the influence of alcohol. According to the National Highway Traffic Safety Administration and as reported by the Illinois DUI Factbook 2013, “an average of one alcohol-impaired driving fatality occurs every 53 minutes”

across the country. In recent years, many states have initiated extremely strict penalties for driving under the influence, and Illinois is no exception. If a person is convicted of a DUI, even if it is his first conviction of the sort, his vehicle registration is automatically suspended.

Additionally, according to the Factbook, Illinois is one of 32 states

 that require a “first-time DUI offender to have a Breath Alcohol Ignition Interlock Device (BAIID) installed on his/her vehicle.” Only once the BAIID is installed on the offender’s vehicle can the driver then be eligible for relief from licensesuspension. If a person is caught driving with a suspended license after receiving a DUI conviction, he or she is guilty of a Class 4 felony. A Class 4 felony can carry heavy sentences such as a revocation of driving privileges for up to two full years. At a minimum (if the license was suspended for reasons other than DUI), according to the Illinois DMV, driving with a suspended license is “considered a Class A misdemeanor with a possible fine of up to $2,500 and up to 364 days in jail.”

If your license has been suspended or revoked, understanding the reinstatement process is the first step toward recovery. The most important part of the process is to enlist the assistance of a qualified attorney. He will be able to help you determine if you qualify for Driver Relief, or Restricted Driving privileges (RDP). According to the Illinois DMV, “RDP usually only covers driving to work or school; sometimes exceptions are made for driving yourself or relatives to medical appointments.” Other types of restricted driving permits include a Judicial Driving Permit, a Probationary License, or a Family Responsibility Driving Permit. To determine if you qualify for any of these, work with your attorney and your local SOS Office.

After the period of license revocation is over, you’ll need to pay to have it reinstated. Reinstating a license after suspension in Illinois isn’t cheap. “These mandatory fees vary according to the reason your license was suspended or revoked,” according to the DMV. You’ll also have to pay for a new license. Your best bet is to work with a qualified attorney.

If you or someone you know has had her license suspended or revoked, don’t go through it alone. Contact a dedicated Chicago-area attorney today.

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