Chicago Criminal Lawyer Blog
Failing the Breath Test in Chicago Does Not End Your Case
Many people in Chicago believe that failing a breath test automatically means they will lose their driver’s license and be convicted of DUI. They walk out of the police station feeling like the case is already over. That assumption is wrong and often leads to unnecessary suspensions and criminal convictions.
Under Illinois law, even if you failed a breath test, you still have the right to challenge both your criminal DUI case and the statutory summary suspension of your driver’s license. Chicago courts hear thousands of these challenges every year, and many of them succeed because police or the testing process did not comply with Illinois statutes and administrative rules.
Chicago is a city where driving matters. People commute from neighborhoods such as Albany Park, Beverly, Humboldt Park, Bronzeville, and Jefferson Park to jobs throughout Cook County. Losing your license affects your ability to work, care for your family, attend school, or simply live your daily life. That is why Illinois law allows suspended drivers to request a hearing and force the state to prove the suspension is lawful.
All criminal offenses in Illinois fall into two categories, misdemeanors and felonies. DUI itself may be charged as either, depending on the situation. A first offense without aggravating factors is usually a Class A misdemeanor. A DUI with prior convictions, injuries, minors in the car, or driving on a revoked license may be charged as a felony. The suspension process operates separately from the criminal charge, which means you could technically win the criminal case and still face a suspension unless it is properly challenged.
The key to protecting yourself is simple. Do not assume a failed breath test ends the fight. A failed breath test is not the same thing as a lawful license suspension or proof beyond a reasonable doubt in criminal court. A Chicago DUI defense lawyer can attack the suspension on multiple independent legal grounds and push to restore your driving privileges while the criminal case is pending.
How Breath Test Failures Lead to Summary Suspensions in Illinois
Breath test suspensions arise from the statutory summary suspension law in Illinois under 625 ILCS 5/11‑501.1. This law allows the Secretary of State to suspend the driving privileges of individuals who either refuse chemical testing or fail a breath or blood test.
A person who fails a breath test usually receives a notice that their license will be suspended beginning on the 46th day after the arrest. That suspension is administrative, not criminal. It can go into effect even before guilt or innocence is determined in court. Many drivers are surprised to learn that they have separate legal battles taking place at the same time, the criminal DUI charge and the civil license suspension.
The criminal case determines guilt and punishment. The statutory summary suspension proceeding determines whether your license will be suspended, for how long, and whether any driving relief options are available. You may avoid a conviction and still face suspension if the administrative case is never contested.
The suspension length depends on whether you failed or refused testing. A first-time failure usually results in a six‑month suspension. A refusal leads to a twelve‑month suspension. Repeat incidents drastically increase those durations. The state does not automatically look for reasons to excuse or shorten the suspension. The driver must formally challenge it.
A Petition to Rescind the Statutory Summary Suspension must be filed in the appropriate circuit court. The petition triggers a hearing where the judge reviews whether the officer complied with statutory requirements. If legal defects exist, the judge can rescind or cancel the suspension completely, even though the breath test result showed a concentration over the legal limit.
Fictional Chicago Case Example Where a Failed Breath Test Suspension Was Overturned
Consider a common scenario that could easily happen on the North Side of Chicago near Lakeview. A driver leaves a restaurant and is stopped for allegedly weaving within the lane. The officer claims to smell alcohol and initiates field sobriety testing. The driver submits to a breath test at the police station and the machine reports a reading of .12. The officer issues a Notice of Statutory Summary Suspension.
Most people would think the suspension is inevitable. However, a Chicago DUI defense attorney can take a different approach. At the rescission hearing, it is revealed that the officer did not observe the driver for the required twenty-minute observation period before administering the breath test. During that time, the driver was seen coughing and burping on video. This matters because mouth alcohol can falsely elevate breath alcohol concentration readings.
The defense attorney also obtains calibration logs that reveal that the breath testing instrument had not been maintained in accordance with Illinois State Police administrative rules. The officer additionally failed to correctly provide the Warnings to Motorist in writing and did not read them in full aloud as required.
With these combined defects, the judge orders the statutory summary suspension rescinded. The criminal DUI case still proceeds, but the driver’s license is restored and the state loses one of its most powerful pieces of evidence. This type of result is not unusual when a careful legal review is applied. It shows why assuming “I failed the test so nothing can be done” is one of the most serious mistakes a defendant can make.
Evidence Law Enforcement Tries to Collect and How It Is Used
Police departments in Chicago rely on multiple layers of evidence in DUI investigations. That evidence often includes officer observations about physical appearance, odor of alcohol, balance issues, or speech patterns. Officers then rely on field sobriety exercises that purport to measure divided attention skills. Finally, they move to chemical testing such as breath, blood, or urine tests.
In addition to these traditional forms, modern DUI investigations frequently include body camera footage, dash camera recordings, computer‑assisted incident reports, and dispatch recordings. In an accident case, witness statements, photographs, and accident reconstruction reports may also become part of the record.
Each category of evidence contains potential weaknesses that a Chicago criminal defense lawyer can expose. Poor lighting or weather conditions can affect roadside tests. Certain medical conditions can mimic intoxication signs. Breath machines require rigorous scientific accuracy. Blood draws must follow strict chain‑of‑custody protocols. A single failure in any stage can significantly reduce the reliability of the state’s case.
The government carries the burden of proof. It is not the defendant’s job to prove sobriety. The role of the defense is to test the strength, accuracy, and lawfulness of the prosecution’s case at every phase of the criminal process.
How the Criminal Case Proceeds After the DUI Arrest
A criminal case generally begins with a stop, detention, arrest, and formal charging by complaint or citation. After arrest, the defendant appears before a judge for bond review or release conditions. The case then proceeds into discovery where both sides exchange information and examine evidence.
The defense attorney evaluates whether the stop was lawful, whether probable cause existed for arrest, and whether chemical testing complied with Illinois statutes and ISP administrative rules. The defense may file motions to suppress evidence or to dismiss the case. The matter may resolve through dismissal, negotiated plea, or trial.
If the case proceeds to trial, the state must prove impairment beyond a reasonable doubt. A bench trial places decision‑making in the hands of a judge while a jury trial places it in the hands of twelve citizens. A conviction may carry jail time, fines, probation conditions, mandatory alcohol treatment, community service, ignition interlock requirements, and long‑term record consequences. Felony convictions carry prison exposure and lasting collateral effects such as employment limitations, immigration issues, and reputational harm.
At every meaningful stage, having a Chicago DUI attorney present can change the course of the case by raising objections, presenting evidence, and protecting constitutional rights.
Legal Defenses Available Even After a Failed Breath Test
Defenses in breath test cases exist even when the numerical result appears high. The following issues frequently arise in court across Cook County. Officers sometimes lack reasonable suspicion for the initial stop. Arrest may occur without probable cause. Warnings to Motorist may be incomplete or improperly given. Breath testing devices may be defective or improperly calibrated. Operators may lack current certification. Observation periods may be ignored. Mouth alcohol contamination may occur due to belching, acid reflux, or dental devices. Medical conditions may skew results. Breath testing software or hardware may malfunction.
These defense themes are developed through subpoenas, witness examination, review of records, and legal argument. Winning a DUI case is not about telling a story; it is about showing that the state failed to meet its burden with reliable and lawfully obtained evidence. When a court finds procedural or constitutional violations, dismissals or suppressions of evidence are possible.
Qualities to Look for in an Illinois Criminal Defense Attorney and Questions to Ask
When selecting an attorney for a DUI case involving a failed breath test, clients should look for communication skills, courtroom presence, familiarity with Illinois DUI statutes, and a history of contested hearing work. A strong attorney should be available, responsive, and willing to explain the strategy in clear language.
During a consultation, defendants should feel comfortable asking questions. Clients often ask about possible defenses to their specific facts, experience appearing before Chicago‑area judges, how the attorney approaches statutory summary suspension hearings, whether trial is a realistic option, expected timelines, and fee structure. The right Chicago DUI lawyer will not guarantee results but will describe practical goals, potential strategies, and realistic expectations.
Chicago DUI Suspension and Criminal Defense FAQs
Can I challenge a statutory summary suspension even if the breath test result was high?
Yes. A Chicago DUI lawyer can contest the suspension by filing a petition to rescind. The court reviews whether police followed correct procedures and whether the test was reliable. A high number on a machine does not automatically make the suspension lawful.
What happens if I miss the deadline to request a hearing?
If the petition is not filed in time, the suspension usually goes into effect on the 46th day after arrest. A Chicago criminal defense lawyer may still pursue limited relief options, but missing the deadline makes the process harder and sometimes eliminates options entirely. Acting quickly after arrest is critical.
Will winning the suspension hearing dismiss my criminal DUI case?
Not automatically. The suspension hearing is separate from the criminal charge. However, success in one proceeding can help in the other because it often reveals weaknesses in the evidence. A skilled DUI attorney in Chicago will fight both proceedings strategically.
Can a DUI suspension affect employment or professional licensing?
Yes. Loss of driving privileges often interferes with commuting and employment obligations. Certain professions require valid licenses or clean driving records. A Chicago criminal defense lawyer can help explain these collateral consequences and pursue relief to minimize the damage.
Do police always follow the rules in breath test cases?
No. Officers sometimes miss required observation periods, skip steps, or fail to document compliance with administrative rules. Machines also malfunction or lack valid certification. These errors provide powerful grounds for defense when properly litigated in court.
Can I get driving privileges while the suspension is pending?
Many first‑time offenders may qualify for a Monitoring Device Driving Permit that allows limited driving with a breath interlock device. A Chicago DUI attorney can advise on eligibility and assist with the application process while the challenge is ongoing.
Is a breath test refusal better or worse than failing the test?
Refusals usually trigger longer suspensions but may deny the state chemical test evidence. Whether refusal is better depends on the facts. A discussion with a Chicago DUI lawyer shortly after arrest helps determine the best strategic framework for your situation.
Why Choosing The Law Offices of David L. Freidberg Matters
Defendants facing breath test suspensions often feel defeated before the legal fight has even begun. They assume that the state’s paperwork is flawless and that the machine is always accurate. My office works daily to show courts where procedures break down, where constitutional rights were ignored, and where evidence lacks reliability.
My practice represents clients throughout Chicago and surrounding counties including Cook County, DuPage County, Will County, and Lake County. I appear regularly in local criminal courts and statutory suspension hearings. I focus on immediate action to protect driving privileges, aggressive courtroom advocacy, and thoughtful strategy tailored to each client’s situation.
Call The Law Offices of David L. Freidberg Today
Don’t let your license get suspended because no one acted fast enough. At The Law Offices of David L. Freidberg, I treat license suspension as seriously as the criminal charge. I file your hearing requests immediately, examine every piece of evidence, and fight for dismissal, reduction, or supervision every step of the way.
I represent clients in Chicago, Cook County, DuPage County, Will County, and Lake County, and I answer calls 24/7. Whether you’re facing your first DUI or you’re trying to preserve your driving privileges after a second offense, I can help.
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.
