DUI Defense: What Happens If I Refuse a Breathalyzer in Illinois?

 Posted on August 26, 2025 in DUI

In the state of Illinois, as in all other states, driving is considered a privilege, rather than a right, and those who obtain a driver’s license are bound by implied consent laws. Under implied consent, drivers automatically agree to submit to chemical testing (breath, blood, or urine) if a law enforcement officer suspects impaired driving. Although you can refuse a chemical test when stopped on suspicion of DUI, there are automatic penalties for doing so.

For a first-offense DUI arrest, refusing a breathalyzer triggers an automatic driver’s license suspension for a minimum of 12 months. This is known as a statutory summary suspension (625 ILCS 5/2-118.1). There are longer suspensions for repeat offenders, and the refusal to submit to a chemical test can be presented in court as evidence of guilt. If you are facing DUI charges, having an experienced Joliet, IL criminal defense attorney by your side can make all the difference in the consequences of your charges.  

Is There a Benefit to Refusing to Submit to a Breathalyzer?

It is important to understand that refusal of a breathalyzer test will not stop your DUI criminal charges from moving forward. Prosecutors often successfully build cases using evidence other than breathalyzer results. The police officer can testify that you were driving erratically, your speech was slurred, or you failed field sobriety tests, and may have video footage to back up those claims.  

While it is true that without BAC results, the prosecutors must rely on circumstantial evidence, they may also use your refusal to argue that it was an attempt to conceal impairment and indicates consciousness of guilt. Because court dockets are so clogged, a DUI trial may be scheduled and rescheduled multiple times, often pushing it months or even a year or more into the future.

A driver’s license suspension for refusing a breathalyzer test is immediate. The first refusal results in a one-year suspension, while a second refusal or a prior DUI within the past five years leads to a three-year suspension. This automatic suspension typically begins 46 days after your arrest, unless you challenge the suspension.

While you have 90 days to request a court hearing on the suspension, simply requesting a hearing does not prevent the suspension from taking effect. Because of this, it is in your best interests to speak to a DUI attorney and request a hearing as soon as possible. Challenging a suspension resulting from a refusal to take a breathalyzer test has very specific grounds.

As an example, the suspension could potentially be rescinded if there are insufficient grounds to support the police officer’s assertion that you were operating a vehicle while intoxicated. Police officers must advise drivers of the consequences of refusing a chemical test, and if they fail to do so, the suspension could also be rescinded.

How Long Will the Driver’s License Suspension Be If You Do Submit to a Chemical Test?

In the state of Illinois, if you submit to a chemical test after being stopped on suspicion of DUI and fail the test (0.08 percent or higher), you will receive a statutory summary suspension of six months for a first offense and one year for a second or subsequent offense within five years.

This is an administrative penalty from the Illinois Secretary of State and is not a part of your criminal DUI case. The statutory summary suspension begins 46 days after a failed chemical test, and you only have 15 days from the date you receive your temporary permit (given to you at the time of your request) to request a hearing.

How Can You Challenge a Suspension from a Refusal to Take a Chemical Test?

To challenge an Illinois statutory summary suspension from a breathalyzer refusal, you must request a hearing as quickly as possible. It is always a good idea to have a knowledgeable DUI attorney with you at this hearing. Your attorney may argue that the officer lacked grounds for the initial stop, or that you were not adequately informed of the potential consequences of refusing the chemical test.   The process for the hearing is as follows:

• A formal request for an administrative hearing must be made via a written application.
• A $50 filing fee must accompany the application, with both being sent to the Illinois Secretary of State’s Office through the U.S. mail.
• The hearing will be presided over by a hearing officer from the Secretary of State’s Department of Administrative Hearings.
• Your attorney will present evidence on your behalf and can call witnesses to testify for you.
• It usually takes about two months for the Secretary of State’s office to process your application and schedule the hearing.  
• If the hearing officer believes you were engaged in impaired driving, the 12-month license suspension will be upheld; if not, your driver’s license will not be suspended.

Are There Any Benefits to Refusing a Breathalyzer Test?

It is often said that by refusing a breathalyzer test, you are preventing the prosecution from having more evidence to use against you at trial. Refusing a breathalyzer indeed prevents the prosecutor from having a specific blood-alcohol content (BAC) to use in your criminal DUI case. Still, there are many other ways for the police officer to convince a jury that you were driving under the influence.

Further, many jurors may believe that if you were not actually driving while intoxicated, you would have willingly taken a chemical test. With no BAC test results, the prosecution is forced to build its case solely on the arresting officer’s observations. In some cases, this can be more easily discredited as subjective testimony than challenging a machine’s reading.

Contact a Will County, IL DUI Lawyer

If you refused to take a chemical test, the sooner you have a Joliet, IL criminal defense attorney from McNamara Phelan McSteen, LLC advocating for your rights and your future, the better outcome you are likely to experience. We are a mid-sized, aggressive law firm with lawyers who have specific experience in various areas. We will aggressively pursue justice on your behalf, while safeguarding your rights. Call 815-727-0100 to schedule your free consultation.