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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. 


Sources: 

http://www.ilga.gov/legislation/ilcs/documents/062500050K11-501.8.htm

http://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=062500050K11-501

http://www.ilga.gov/legislation/ilcs/ilcs4.asp?ActID=1815&ChapterID=49&SeqStart=81900000&SeqEnd=84800000

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.

Underage DUI Penalties in Illinois

Web Admin - Tuesday, September 02, 2014

underage drunk driving DUI, Illinois DUI lawyerThe State of Illinois takes all instances of DUIs seriously, but it punishes people under the legal drinking age even more severely. This is because, according to statistics compiled by the National Highway Traffic Safety Administration, 25 percent of fatal car crashes involving teens include at least one underage drunk driver

In order to deal with this issue, the state imposes the standard DUI penalties on underage drivers, and it also tacks on extra zero tolerance penalties. These zero tolerance penalties involve suspensions of driving privileges in circumstances beyond those that would ordinarily qualify as a DUI, and may even involve penalties accruing to the parents of the driver as well.

Standard DUI Penalties

Underage drivers under the influence of alcohol are still subject to standard DUI penalties, but these penalties differ from the DUI penalties for people over the age of 21 in two important respects. First, these penalties are harsher than ordinary DUI penalties. The penalties include a possible $2,500 fine and a license revocation of at least two years, along with up to a year in prison. A second offense comes with the same penalties except that the minimum license revocation increases to five years. Second, these penalties are easier for underage drinkers to trigger. Ordinarily, a DUI charge requires a person to have a blood alcohol content (BAC) of greater than .08. This is still true for underage drinkers, unless there is other evidence proving they were impaired. If such evidence exists, the required BAC drops to .05.

Zero Tolerance Penalties

In addition to the above penalties for an actual DUI charge, underage drinkers can face a host of driving-related penalties. For instance, even if an underage driver registers below a .05, they may still face penalties under zero tolerance laws. Zero tolerance penalties apply to underage drivers who register more than a .00 BAC without triggering full DUI penalties. These zero tolerance penalties include a three-month suspension of driving privileges for a first offense, and a one year suspension for a second offense. Additionally, the law doubles these penalties if the young driver refuses to consent to the necessary testing.

The law also imposes extra penalties on the parents of underage drunk drivers in certain circumstances. If death or great bodily harm results from the parents knowingly allowing underage drinking in their home, then prosecutors may charge the parents with a class 4 felony, which comes with a prison sentence ranging from one to three years and a fine of up to $25,000. Additionally, the parents may be liable for any damage that occurs because of underage drinkers leaving the premises.

If you or your child has recently been charged with a DUI or similar crime, seek help from an Illinois DUI attorney. Our skilled team of lawyers serves clients across the northwest Chicago suburbs, including in Rolling Meadows, Schaumburg, 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.

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.

The Effect of Drunk Drivers on Children

Web Admin - Thursday, May 15, 2014

illinois drunk driving dui lawyerA disturbing national trend in alleged alcohol-related accidents involving children is emerging. In the U.S., approximately 20 percent of children who die in car accidents are in crashes that were caused by a drunk driver. Surprisingly, many of those children are in the impaired driver’s car. According to a study released by Dr. Kyran Quinlan, a pediatrician at the Erie Family Health Center, 65 percent of the children killed by drunk drivers are in the impaired driver’s car rather than in the one hit by the driver. Drunk driving is a dangerous crime for the perpetrator and for the victims, and it can come with serious penalties.

Alcohol impairs the functioning of a person’s brain and affects their attentiveness, decision making abilities, reaction speed, and judgment. These impairments can have a particularly serious effect on a driver since speedy reactions, clear vision, and the ability to make quick decisions are especially important on the road.

Drunk Driving Penalties

The penalties for drunk driving in Illinois can be quite serious and include fines, jail time, license suspensions and the use of an ignition interlock device, although the specifics depend on the number of offences. A first time DUI can come with up to a year in prison, along with a fine of up to $2,500 and a license suspension of at least one year. The next offense comes with the same possible penalties, except that the offender’s license will be suspended for at least five years. A third DUI would come with between three and seven years in prison, a fine of up to $2,500 and a minimum license suspension of 10 years. Additionally, after a first offense the court will mandate this installation of an ignition interlock device, a Breathalyzer-like device that will prevent the car from being started by an inebriated driver.

Additionally, drunk driving can also result in the person being charged with other crimes. If the drunk driver causes an accident that results in a death, the driver could also be charged with reckless homicide. Ordinarily, reckless homicide would be a class three felony, however if it occurs as the result of drunk driver, the law upgrades it to a class two felony. This can lead to a serious prison sentence from between three and 14 years, as well as other fines and the loss of the person’s driver’s license.

There are a variety of resources available to people who need a sober ride home after drinking. However, if you have been charged with drunk driving or involved in an accident, contact an Inverness criminal defense attorney. Our skilled team of attorneys handle cases across the northwest suburban Illinois towns like Rolling Meadows, Des Plaines, 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.


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