Passed the Breath Test? You Can Still Be Arrested for DUI in Illinois

It’s a question we hear almost every day from people across Chicago: “How can I be arrested for DUI if I didn’t even blow over the limit?” The truth is simple—Illinois law doesn’t require a failed breath test to arrest or prosecute you for driving under the influence.

At The Law Offices of David L. Freidberg, we’ve defended countless clients charged with DUI based solely on an officer’s judgment. These cases often involve field sobriety tests, subjective observations, and refusals—not scientific proof. And while the law allows officers to make these arrests, it doesn’t mean they’re always right. If you were arrested for DUI despite passing a breath test or refusing it altogether, you still have powerful legal options.


The Legal Standard for DUI Arrests in Illinois

In Illinois, DUI is defined under 625 ILCS 5/11-501 as operating a motor vehicle while under the influence of alcohol, drugs, or any intoxicating substance to a degree that renders you incapable of driving safely. This can include alcohol below the .08 BAC limit, cannabis (legal or not), prescription medications, or other substances.

Contrary to popular belief, the law does not require chemical test results to support a DUI arrest. The standard is probable cause, which means an officer must have reasonable grounds to believe that you were driving impaired.

That standard is often met through:

  • The officer’s personal observations

  • How you respond to questions during the traffic stop

  • Your performance on field sobriety tests

  • The presence of alcohol or drugs in your vehicle

  • Your refusal to submit to testing

And once that probable cause threshold is reached, an officer is legally allowed to place you under arrest—even if your BAC is below .08 or there is no breath test at all.


Field Sobriety Tests: A Flawed Foundation for Arrests

Police often rely on standardized field sobriety tests (SFSTs) when they don’t have a breath test result. These include the walk-and-turn, one-leg stand, and the horizontal gaze nystagmus (eye movement) test. They’re meant to detect impairment—but they’re also highly subjective.

You could fail a field test because of:

  • Nervousness

  • Fatigue

  • Uneven pavement

  • Old injuries

  • Language barriers

  • Anxiety from being pulled over

Despite these limitations, failing one or more SFSTs often becomes the cornerstone of the prosecution’s case. Police reports tend to frame these tests as conclusive. At our firm, we know how to challenge the reliability and administration of these tests in court.

In one case from Humboldt Park, our client was stopped for a broken taillight. The officer claimed he failed two field sobriety tests and arrested him. No breath or blood test was ever administered. We pulled dash cam footage, which showed poor lighting and the officer rushing instructions. The judge ruled the tests were unreliable, and the case was thrown out.


Can You Be Arrested for DUI After Passing a Breath Test?

Yes, and it happens more often than you’d think. You may blow a .05 or .06 but still get arrested if the officer believes you’re impaired by alcohol, drugs, or medication. Illinois law does not set .08 as the minimum threshold for impairment—it simply makes that level presumptive.

Officers can and do arrest people who blow under .08 if they observe what they believe are signs of intoxication. They may claim you were slurring your speech, had poor balance, or were unsteady on your feet—even when video tells a different story.

We represented a nurse from Lincoln Park who blew a .06 but was arrested after the officer claimed she had dilated pupils and glassy eyes. The officer suspected drug use. We obtained her medical records, which showed she had been prescribed medication known to affect pupil size. Combined with our cross-examination of the officer at the pretrial hearing, the case fell apart and was dismissed.


The Consequences of Refusing a Breath Test in Illinois

If you refuse to take a breath, blood, or urine test after being arrested for DUI, you’ll face an automatic suspension of your driver’s license under Illinois’s implied consent law (625 ILCS 5/11-501.1).

  • First offense: 12-month suspension

  • Second offense within five years: 3-year suspension

This is called a Statutory Summary Suspension, and it’s enforced even if you’re not ultimately convicted of DUI. The only way to fight it is to file a Petition to Rescind, and time is limited.

Many clients don’t know that you have just 90 days from your arrest to contest the suspension in court. At The Law Offices of David L. Freidberg, we’ve helped drivers restore their licenses by winning rescission hearings based on:

  • Missing or defective paperwork

  • Officer’s failure to warn of consequences

  • Officer no-show at hearing

  • Improper arrest procedure

You can—and should—challenge your suspension. But you’ll need a lawyer who understands both the administrative and criminal sides of DUI law in Illinois.


Can You Be Convicted Without Any Chemical Test?

Yes. While it’s more difficult for prosecutors, it is absolutely possible for someone to be convicted of DUI without a breath or blood test. That’s why it’s so important not to underestimate the situation.

The prosecution will rely on:

  • The arresting officer’s testimony

  • Field sobriety test results

  • Bodycam or dash cam video

  • Driving behavior

  • Admissions made during questioning

  • Witness testimony

That’s why a good DUI defense doesn’t start with “what was your BAC?” It starts with “why did they stop you?” If the initial stop lacked reasonable suspicion, everything that follows—arrest, tests, charges—can be thrown out.


What Happens After the Arrest?

Once you’re arrested, the case will follow a fairly standard path:

  • Initial Appearance/Arraignment

  • Statutory Summary Suspension hearing (if requested)

  • Pretrial Hearings

  • Motions to Suppress or Dismiss

  • Trial (Bench or Jury)

At each stage, your defense attorney has opportunities to fight the charge. Motions can be used to exclude evidence or challenge the legality of the stop. Even if the case doesn’t go to trial, a strong pretrial strategy can lead to better plea offers or complete dismissal.

Don’t wait until the week of court to hire an attorney. Early preparation is one of the biggest advantages in a DUI case—especially when you never failed a breath test.


Long-Term Damage of a DUI Conviction—Even Without a BAC

If you’re convicted of DUI in Illinois, the consequences extend well beyond fines and court appearances. You’ll be left with a permanent criminal record. DUI convictions cannot be expunged or sealed under Illinois law.

That record could:

  • Prevent you from passing background checks

  • Lead to job loss or limit future opportunities

  • Cause your car insurance premiums to skyrocket

  • Disqualify you from housing or professional licensing

  • Trigger immigration consequences if you’re not a U.S. citizen

Felony DUI convictions—for cases involving injury, children in the car, or prior offenses—come with even harsher consequences, including prison time and mandatory license revocation.

If you work in education, healthcare, transportation, or any licensed profession, a conviction can derail your entire career.


Why You Need a DUI Defense Attorney Now—Not Later

You don’t have to blow over the limit—or blow at all—for your life to be turned upside down by a DUI arrest. The moment you’re placed in cuffs, your case is in motion. Prosecutors in Cook County and surrounding jurisdictions treat DUI cases seriously, and you should too.

At The Law Offices of David L. Freidberg, we approach every DUI case with a trial mindset. Even if your goal is to resolve the case quickly, that posture improves your position in every negotiation and gives you the tools to fight when needed.

We:

  • Analyze every detail of the traffic stop

  • Demand and review all video evidence

  • Challenge field sobriety tests and officer conduct

  • File suppression motions where appropriate

  • Represent you in both criminal and license suspension hearings

Our team has achieved dismissals and not-guilty verdicts across Cook, DuPage, Will, and Lake Counties—even when clients were arrested without test results.


Arrested for DUI in Chicago Without Failing a Test? Let’s Talk.

Don’t let a police officer’s opinion define your future. If you’ve been charged with DUI—even though you passed or refused a breath test—you still have a right to fight. But you need an experienced attorney who understands how these cases really work.

When You Need a Fighter, Call Us

Whether you’re charged in Skokie, Maywood, Bridgeview, Rolling Meadows, or downtown Chicago, 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.

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