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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.


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