Chicago Criminal Lawyer Blog
The Legal Gamble: What You Risk and What You Gain by Refusing a Breath Test in Illinois
The flashing red and blue lights behind you, the sound of your own heartbeat pounding in your ears, and a uniformed officer asking you to take a breath test—it’s a moment that can change your life. If you’ve found yourself in this situation in Chicago or anywhere in Illinois, you may be wondering whether refusing that breath test was the right move—or if it’s something you should do if it ever happens again.
The reality is this: refusing a breath test in Illinois isn’t a legal loophole or a “get out of jail free” card. But it also doesn’t automatically make things worse. Whether or not refusal is a good idea depends entirely on the facts surrounding the stop, your driving record, and how your defense attorney handles the case from the start.
This article walks through what happens when you refuse a breath test in Illinois, what penalties you face, how prosecutors can still try to convict you, and why hiring a defense attorney right away is one of the most important decisions you’ll ever make.
What Happens Legally When You Refuse a Breath Test?
Illinois law is clear: if you are lawfully arrested for DUI, you’re expected to comply with chemical testing—whether it’s a breath, blood, or urine test. This is called implied consent, and it’s written into 625 ILCS 5/11-501.1. By getting behind the wheel on Illinois roads, you agree in advance to submit to testing if police believe you are driving under the influence.
If you refuse to take the test after arrest, the officer will file a notice with the Secretary of State, and your driver’s license will be subject to statutory summary suspension:
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For a first-time refusal, the suspension is 12 months
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For a second or subsequent refusal, it’s 3 years
These are administrative suspensions that apply even if you’re never convicted of DUI in criminal court. That’s a major shock for many people. They believe that without a failed breath test, the State has no case. But that’s only part of the story.
The Criminal DUI Case Still Moves Forward Without a Test Result
Refusing the test may deprive prosecutors of one of their strongest pieces of evidence—your BAC level—but it doesn’t prevent them from charging you. In Illinois, DUI can be proven based on observations and circumstantial evidence, not just chemical analysis.
The charge itself remains a Class A misdemeanor under 625 ILCS 5/11-501(a)(2) for most first offenses. That means you still face:
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Up to one year in jail
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Up to $2,500 in fines
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Mandatory alcohol education or treatment
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Community service
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Court supervision (if eligible) or a permanent conviction on your record
And if you have prior DUI convictions, were driving on a suspended license, had a minor in the car, or caused bodily injury, the charges can be upgraded to a felony DUI. Even without a breath test result, prosecutors will try to prove you were impaired beyond a reasonable doubt.
How Prosecutors Prove Impairment Without a Breath Test
When there’s no breath test result, prosecutors lean heavily on the arresting officer’s report and testimony. That includes:
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Your behavior at the time of the stop
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Any signs of impairment (slurred speech, unsteady walking, bloodshot eyes)
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Performance on field sobriety tests (if you didn’t refuse those too)
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Statements you made (such as admitting to drinking)
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Driving behavior observed before the stop
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Video evidence from bodycams or squad cars
All of this evidence can be—and often is—challenged in court. But without an attorney, most people don’t know what weaknesses to look for. That’s why refusal cases often come down to how quickly and aggressively your lawyer gets involved.
When Refusing the Breath Test Can Work to Your Advantage
There are circumstances where refusing the test may reduce the State’s ability to convict you. For example, if:
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You are sure your BAC is significantly over the legal limit (0.08%)
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There was no accident, injury, or aggravating circumstance
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You refused the test respectfully and without confrontation
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You remained silent and didn’t make any damaging statements
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You did not take field sobriety tests
In these cases, a refusal leaves the prosecution with very little concrete evidence. That opens the door to a successful motion to suppress or favorable negotiation with the prosecutor.
Refusal cases also give your attorney more room to attack the probable cause for arrest. If there’s no clear evidence of impairment and no BAC result, it’s possible to get the case dismissed or reduced—something that’s much harder when a test result is on the record.
But There Are Downsides—and They Can Be Severe
Refusing the test carries real consequences, even before the criminal case starts. The automatic license suspension for 12 months can disrupt your job, family life, and finances. You’ll need to apply for a Monitoring Device Driving Permit (MDDP) and have a Breath Alcohol Ignition Interlock Device (BAIID) installed in your vehicle if you want to drive during the suspension period.
Additionally, your refusal may be used against you in court. Prosecutors will argue that you refused because you were guilty. They’ll suggest that you were trying to hide how intoxicated you were. While the refusal itself is not enough to convict you, it can certainly shape how your case is perceived by a judge or jury.
And for repeat offenders, a refusal can eliminate the possibility of supervision, increase mandatory sentencing, and make the case harder to resolve without a conviction.
How a DUI Attorney Defends Refusal-Based Cases
Refusal cases are complex, but they can also be winnable. A skilled DUI lawyer in Chicago will begin by challenging every step of the police investigation:
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Did the officer have legal grounds to initiate the stop?
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Was the arrest based on probable cause, or just assumptions?
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Were your rights explained before the request for a breath test?
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Did the officer follow protocol when advising you of the consequences of refusal?
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Is the officer’s report consistent with bodycam or dashcam footage?
From there, your attorney may file motions to suppress evidence, seek to rescind the license suspension, and negotiate with the prosecution to avoid a conviction. In many cases, particularly for first-time offenders, it’s possible to secure court supervision or a reduced charge—even after a refusal.
What to Do If You’ve Already Refused a Breath Test
The most important thing to do is act fast. You only have 90 days from the date of your arrest to challenge the license suspension. If you miss that window, your license will be suspended for the full term.
Your attorney can file a petition to rescind and request a hearing. At the hearing, your lawyer can cross-examine the officer, challenge the legality of the stop, and potentially get the suspension thrown out. This is one of the few chances to weaken the State’s case early—so don’t waste it.
You should also begin working with your attorney on a defense strategy for the criminal case. The sooner your lawyer gets discovery materials (such as police reports, bodycam footage, and witness statements), the better your chances of building a strong case.
Should You Refuse a Breath Test in the Future?
There’s no one-size-fits-all answer. If you’ve had just one or two drinks and believe you’re under the limit, it may be safer to take the test. If you’re likely to blow well above the legal limit and face certain conviction based on the result, refusal may reduce the State’s evidence.
But here’s the bottom line: either choice comes with risks, and the best way to protect yourself is to contact a DUI lawyer immediately after any arrest or traffic stop involving alcohol.
Call Now – The Law Offices of David L. Freidberg Is Ready to Help
If you were arrested in Chicago for DUI, 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.
