Chicago Criminal Lawyer Blog
If you were pulled over in Chicago and refused a breath test, you’re probably wondering if that decision made things worse—or if it gave you an edge. I’ve had many clients throughout Chicago—from Hyde Park to Lincoln Park—ask me the same thing after being arrested for DUI: “Can I still fight the license suspension even though I refused the test?”
The short answer is yes, but the process moves fast—and the consequences are serious.
Under Illinois’ implied consent law (625 ILCS 5/11-501.1), any person who drives or is in actual physical control of a motor vehicle on public roads is deemed to have consented to chemical testing. That means if you refuse a breath, blood, or urine test after a lawful DUI arrest, your driver’s license is automatically suspended—even before you go to court.
This is called a statutory summary suspension. It’s separate from the criminal DUI charge. The suspension starts 46 days after your arrest, unless you request a hearing within 30 days to challenge it.
In many cases, refusing the test may make it harder for the prosecution to prove you were impaired. But at the same time, it triggers a 12-month license suspension for a first refusal—and 3 years if you’ve had a DUI in the last five years. That suspension is automatic unless your Chicago DUI lawyer files the proper petition and wins at the hearing.
So yes, you can fight it. But you must act immediately. I help clients across Cook County—from South Shore to Logan Square—prepare for these hearings, gather evidence, cross-examine officers, and challenge the traffic stop itself. And sometimes, we win.
The Criminal DUI Case in Illinois: How a Breath Test Refusal Affects Strategy
Breath test refusal affects more than just your license—it also affects the criminal side of your case. Without a BAC reading, the state has to rely on other evidence to prove you were under the influence: officer observations, field sobriety test performance, your statements, and sometimes dashcam or bodycam footage.
Under 625 ILCS 5/11-501(a), the prosecution must prove that you were either:
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Driving with a BAC of 0.08 or more, or
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Under the influence of alcohol or drugs to a degree that rendered you incapable of safe driving
When there’s no test result, the prosecution has to build a case on circumstantial evidence, which is often weaker. That’s where a Chicago criminal defense lawyer steps in. I’ve won many cases where the only real evidence was the officer’s opinion—and it didn’t hold up in court.
The criminal case proceeds through several stages:
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Arrest and booking
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Bond hearing and arraignment
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Discovery and pretrial motions
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Negotiation or trial
If your attorney challenges the legality of the traffic stop or the officer lacked probable cause for arrest, the court may suppress the arrest and any statements you made. That can lead to dismissal before trial.
In Cook County, these cases are heard at the Leighton Criminal Courthouse or at suburban locations like Skokie, Maywood, Bridgeview, or Rolling Meadows. A lawyer who regularly handles DUI cases in these courtrooms knows how local judges handle breath test refusal cases and how to push back against weak evidence.
Technical Violations During a DUI Case: What Judges in Chicago Really Think
A lot of people think the criminal case is the only thing that matters. But judges in Chicago pay close attention to what you do while your case is pending. Missed court appearances, failed check-ins with pretrial services, skipped drug tests, curfew violations, or late payments of fines—all of these can hurt your case, even if they aren’t new crimes.
These are called technical violations, and they’re different from substantive violations, which include:
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Getting arrested for a new offense
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Driving on a suspended license
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Failing a drug or alcohol test
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Tampering with an ankle monitor
Substantive violations almost always result in your bond being revoked and potentially tougher sentencing. But repeated technical violations are not taken lightly either. Judges view them as a sign that you’re not taking the process seriously.
As your DUI defense attorney in Chicago, part of my job is to help keep you compliant and explain issues to the judge before they escalate. If you miss a court date because of a family emergency or illness, I file motions to vacate warrants and prevent the state from using it against you at sentencing.
The goal is to show the court that you’re engaged in the process and willing to take responsibility—even if you made a mistake. I’ve worked with many clients across neighborhoods like Albany Park, Beverly, and Uptown to repair damage from technical violations and keep their defense on track.
Fictional Example: DUI Arrest and Breath Test Refusal in Chicago’s Near West Side
Let me give you a realistic scenario. A man is pulled over near Ashland and Taylor in the Near West Side neighborhood late at night for allegedly rolling through a stop sign. The officer approaches and claims to smell alcohol. The driver says he had two beers earlier. Field sobriety tests are administered on a poorly lit sidewalk. He refuses the breath test at the station.
He’s arrested for DUI and served with notice of a 12-month license suspension due to the breath test refusal. He hires my office the next day.
We immediately file a Petition to Rescind the Statutory Summary Suspension, challenging the legality of the traffic stop. At the hearing, we present dashcam footage that shows the driver did, in fact, come to a complete stop. The officer’s report says the stop sign was “clearly ignored,” but the footage contradicts that claim.
Because the stop was unlawful, all evidence gathered afterward—field sobriety tests and refusal—must be suppressed. The judge agrees, and the suspension is rescinded. Later, we file a motion to quash arrest in the criminal case, which also leads to dismissal.
This example highlights why it’s possible to beat both the suspension and the charge—even after refusing the test—if you act fast and have a Chicago DUI attorney who knows how to attack the case from the beginning.
FAQs: Chicago DUI Defense and Breath Test Refusal
Can I lose my license just for refusing the breath test, even without a DUI conviction?
Yes. Illinois law enforces a statutory summary suspension just for refusing the test after a lawful arrest. That suspension is automatic unless you file a petition within 30 days and win your hearing. A Chicago DUI lawyer can help fight the suspension and possibly avoid any license consequences.
Is the license suspension longer if I refuse the test instead of taking it and failing?
Generally, yes. For a first DUI, failing the test leads to a 6-month suspension, while refusing results in a 12-month suspension. For second offenses, refusal leads to a 36-month suspension. The penalties are harsher for refusing, but refusal also makes the criminal case harder to prove.
What’s the deadline to fight the suspension?
You have 30 days from the date of your DUI arrest to file a Petition to Rescind the Statutory Summary Suspension. If you miss that deadline, the suspension will go into effect automatically on the 46th day. Your Chicago criminal defense lawyer should file this immediately.
Does refusing the test hurt or help my DUI defense?
It depends. Refusing the test deprives the prosecution of chemical evidence, which can weaken their case. But it also creates a civil penalty—license suspension. A skilled DUI lawyer in Chicago can explain how refusal affects your particular case and whether it improves your chances at trial.
What if I refused but the officer didn’t explain the consequences?
Police are required to read a “Warning to Motorist” explaining the consequences of refusal. If they failed to do this, or didn’t do it properly, we can raise this as a defense and possibly get the suspension thrown out. I always review bodycam or paperwork to check for this issue.
Can I still drive if my license is suspended for refusing the test?
In most cases, yes—with a Monitoring Device Driving Permit (MDDP). This allows first-time offenders to drive with a BAIID device installed in their vehicle. But you must apply and be approved. A Chicago DUI attorney can help you qualify and complete the application correctly.
Will the refusal show up in court even if I beat the DUI charge?
Yes. The refusal and any resulting license suspension are separate from the criminal case. Even if your DUI is dismissed, the Secretary of State can still enforce the suspension—unless it’s overturned in the administrative hearing.
Does it matter if I have a commercial driver’s license (CDL)?
Absolutely. CDL holders face stricter penalties. Refusing a breath test can lead to disqualification of your CDL—even for a first offense. The consequences for commercial drivers are more severe, and if you hold a CDL, you need a Chicago DUI lawyer immediately.
Why You Need a DUI Lawyer If You Refused the Breath Test
If you refused the breath test, your case is already more complicated than most. You’re facing two legal battles at once: one for your license, and one for the criminal DUI charge. You can’t afford to lose both.
Many people think refusal gives them an advantage—but if you don’t fight the suspension in time, you’ll still lose your license, and possibly your job or ability to care for your family. The right DUI defense lawyer in Chicago can challenge the legality of the stop, the officer’s observations, and whether your refusal was lawfully obtained.
At The Law Offices of David L. Freidberg, I take immediate action after a DUI arrest to preserve your rights, file time-sensitive motions, and start building your defense before your first court date. Whether your case is at 26th and California, Skokie, Maywood, or Bridgeview, I know how to challenge the evidence and give you options beyond pleading guilty.
Why Defendants Choose The Law Offices of David L. Freidberg
Clients facing DUI charges in Chicago need more than reassurance. They need action. At The Law Offices of David L. Freidberg, I focus on immediate defense, aggressive motion practice, and protecting driving privileges whenever possible.
I represent clients throughout Chicago, Cook County, DuPage County, Will County, and Lake County. My approach is built on preparation, accountability, and courtroom advocacy.
When You Need a Fighter, Call Us!
Whether you’re charged in downtown Chicago, Skokie, Maywood, Bridgeview, or Rolling Meadows, we’re ready. We appear regularly in courtrooms throughout Cook, DuPage, Will, and Lake Counties. And we don’t treat aggravated speeding as just another moving violation.
If you were arrested in Chicago, protect your future by contacting The Law Offices of David L. Freidberg. We have decades of experience handling DUI cases in Illinois. Our firm is available 24/7 to provide the legal defense you deserve.
Contact us today at (312) 560-7100 or toll-free at (800) 803-1442 for a free consultation. We’re available 24/7 to serve clients throughout Illinois, Cook County, DuPage County, Will County, and Lake County.
