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. 





Premises Liability

Web Admin - Friday, November 13, 2015

premises liability, Crystal Lake Personal Injury Attorney Premises liability allows a person who lives on or visits another person’s property to recover for injuries sustained while on the property, if the owner was negligent. A property owner has a duty to keep the premises or property in a reasonably safe condition. A property owner may be negligent in several ways, including allowing a sidewalk to become icy or a liquid spill to be left in the aisle of a store. 

Hurt on Another Person’s Property 

Traditionally, an invitee was owed the highest level of care. An invitee is a person invited to enter or remain for the commercial benefit of the property owner. This includes a person entering a store to shop or a tenant renting an apartment or house. 

As opposed to an invitee, a licensee is someone who has permission to be on the property, but who is there for his or her own personal purposes and not for business purposes. Guests at a party or family members with an open invitation to visit are considered invitees. Under common law, a lesser standard of care was provided for licensees than was provided for invitees. 

Under Illinois law, the common law distinction between invitees and licensees, in regard to the duty owed, is no longer recognized. Instead, an owner of property owes all entrants a duty of “reasonable care under the circumstances regarding the state of the premises or acts done or omitted on them.” In order to impose liability on an owner or possessor of property, a person injured while on the property of another must establish that the owner: 

1. Knew or in the exercise of ordinary care should have known of the dangerous condition and should have realized that it involved an unreasonable risk of harm;

2. Should have anticipated that the entrant would not have discovered or been aware of the danger, or would not have taken precaution against it; and

3. Failed to exercise reasonable care in providing protection against the danger. 

Importantly, trespassers are not provided the same protections as entrants who have express or implied consent to be on the property. Generally, owners or possessors of property only need to avoid willfully or wantonly injuring trespassers. Willful conduct involves an actor having actual knowledge of the danger of the act being performed in conjunction with a conscious failure to avoid the injury. A wanton act is one that is performed with a reckless indifference to the potential for harmful consequences. 

Helping Victims 

If you have been injured while you were on the property of another person, it may be possible for you to recover damages from the owner. For more information, contact a skilled Illinois personal injury attorney today. Our firm represents individuals throughout the northwest suburbs, in communities such as Crystal Lake, Palatine, Schaumburg, Des Plaines, Rolling Meadows, Buffalo Grove, Barrington, Arlington Heights, Inverness, and Deer Park.

Ken ApicellaAbout the Author: Attorney Ken Apicella is a founding partner of DGAA focusing in the areas of personal injury, employment, insurance coverage disputes, and civil litigation. Ken earned his J.D. from DePaul University College of Law in 1999. He has been named a SuperLawyers Rising Star and a Forty Illinois Attorneys Under Forty to Watch. Ken has written and lectured for the Illinois Institute for Continuing Legal Education and regularly serves as a moderator at Northwest Suburban Bar Association's Continuing Legal Education seminars.



Importance of Taking Traffic Violations Seriously

Web Admin - Monday, September 14, 2015

If you have been a driver for a significant length of time, it is likely you have, at the very least, been pulled over by a police officer. In the worst case scenario, you will have been cited for a traffic violation. If this happens, it may be beneficial to consult with an attorney to fully understand and protect your legal rights.

Consequences of Too Many Violations

Under Illinois Administrative Code, if an individual is convicted of three or more designated traffic violations in a 12 month period, it will result in a driver’s license suspension or revocation. Some examples of violations that can lead to this include speeding, street racing, or reckless driving. Most of the moving violations are codified in Chapter 11 of the Illinois Code, but not all of them (for example, driving without a valid license is found in Chapter 6).

For moving violations, it may be possible to be sentenced to court supervision that lasts a period of between 90 and 120 days. If, at the end of the supervision term, the driver has not been cited for another moving violation, the ticket is dismissed without a conviction. The driver must also have paid all applicable fines and court costs.

The supervision period begins on the date the driver pleads guilty or is found guilty in traffic court. If the driver is cited for another moving violation during the period, the supervision sentence is revoked and the driver is convicted on the underlying ticket. Additionally, the new ticket also counts towards the three-ticket limit. A person can only be given court supervision twice in one year.

Importantly, equipment violations do not usually count toward the limit of three violations. Examples of equipment violations include driving without a taillight, while not wearing a seatbelt, or with a loud muffler.

Length of Suspension

The length of suspension is determined by how many points the individual has on their driving record and whether he or she has had any prior license suspensions. Drivers accumulate points on their record when they are convicted of a violation. The following table is for drivers with no prior suspensions within the seven-year period from the effective date of the suspension or revocation:                   

                    Number of Points                                      Action                            

                             0-14                                         No Action

                             15-44                                       2-month suspension

                             45-74                                       3-month suspension

                             75-89                                       6-month suspension

                             90-99                                       9-month suspension

                             100-109                                   12-month suspension

                             110 or more                             Revocation

Under Illinois law, driving on a suspended license is a Class A misdemeanor, which can result in a jail sentence of up to one year and a fine of $2,500. Additionally, the period of suspension will be extended to a like period of time as the original suspension.

While moving violations usually can be taken care of by simply paying a fine, in some cases, there may be additional consequences. As a result, it is important that you treat moving violations seriously. If you would like more information, speak with an experienced Illinois criminal defense attorney today. Our firm provides representation for communities like 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. 




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