Arrested for DUI in Illinois Without a Breath Test Failure? Yes, It Happens

Most drivers in Chicago assume that if they didn’t blow over the legal limit, they can’t be arrested for DUI. But Illinois law doesn’t work that way. In fact, many people are charged and prosecuted for DUI without ever taking—or failing—a breath test.

At The Law Offices of David L. Freidberg, we represent clients every week who find themselves facing DUI charges based solely on officer observation, field sobriety test results, or refusal to submit to chemical testing. You don’t have to fail a breath test to be arrested—or even convicted—of DUI in Illinois.

Understanding how Illinois DUI law works and what officers look for can make the difference between a damaging conviction and a dropped charge.

What Illinois Law Says About DUI Without a Breath Test

Under 625 ILCS 5/11-501, a person can be charged with driving under the influence if they are:

Operating or in actual physical control of a vehicle
While under the influence of alcohol or another intoxicating substance
To a degree that renders them incapable of driving safely

Notice that the statute doesn’t require a failed breath test or even a specific blood alcohol concentration (BAC) to make the arrest or prove guilt. While a BAC of .08 or higher creates a legal presumption of impairment, prosecutors can move forward without it if there’s other evidence showing you were “under the influence.”

So What Triggers a DUI Arrest Without a Failed Test?

In many DUI arrests across Chicago, especially on the West Side, North Side, and expressways, the arresting officer never even conducts a chemical test. Or the driver refuses. Yet an arrest still follows based on “probable cause.” That’s a legal standard, not proof.

An officer may base probable cause on:

Observed erratic driving (swerving, speeding, failing to signal)
Smell of alcohol or marijuana in the car
Slurred speech or red eyes
Open containers in the vehicle
Performance on field sobriety tests (FSTs)
Admissions made by the driver, like “I only had two drinks”

In Chicago, especially in high-DUI patrol zones like River North or Wrigleyville, police are trained to rely heavily on behavioral cues during the stop. These indicators alone are often enough to justify an arrest—even when no breath test is involved.

Field Sobriety Tests: Unreliable and Subjective

Field sobriety tests are a core part of many DUI arrests, especially when there’s no breath test failure. These include the walk-and-turn, one-leg stand, and the horizontal gaze nystagmus (HGN) test.

But these tests are far from scientific. They depend on the officer’s judgment, and the conditions under which they’re conducted—poor lighting, uneven pavement, stress—make false positives common.

We’ve had multiple cases in Cook County where our client “failed” the field tests simply because of nervousness, old injuries, or language barriers. Yet officers arrested them and prosecutors charged them with DUI, even in the absence of a chemical test.

Refusing the Breath Test in Illinois Has Consequences

While refusing a breath test doesn’t automatically make you guilty of DUI, it can trigger separate administrative penalties under Illinois’s implied consent law.

Under 625 ILCS 5/11-501.1, any person who drives on Illinois roads is deemed to have consented to chemical testing. If you refuse:

You face an automatic Statutory Summary Suspension of your driver’s license
For a first offense: 1-year suspension
For a second or subsequent offense: 3-year suspension

This is separate from any criminal penalty for DUI. You can be found not guilty of DUI but still lose your license simply for refusing the test.

However, refusal can also make the prosecution’s job harder in court. Without a test result, they must prove impairment another way—which is often easier said than done.

Real Case Example: Arrested Without a Test, Charges Dismissed

One of our clients in Logan Square was stopped for allegedly weaving within his lane. He politely refused the field sobriety tests and declined the breath test. The officer noted bloodshot eyes and slurred speech, arrested him, and charged him with DUI.

At trial, we argued that weaving within a lane is not a traffic violation and doesn’t justify a stop. We challenged the credibility of the officer’s observations and showed inconsistencies in the arrest report. With no breath test and weak FST justification, the judge found insufficient probable cause. Case dismissed.

The takeaway? Even without a failed test, DUI charges can be fought—and won.

DUI Without a Test Still Comes With Serious Penalties

If convicted of a first-time DUI in Illinois—even without a breath test—you still face:

A Class A misdemeanor
Up to 1 year in jail
Fines up to $2,500
Driver’s license suspension
Mandatory alcohol evaluation and classes
Ignition Interlock Device if reinstatement is allowed

And if there are aggravating factors, such as injury, a child in the car, or a prior conviction, the charge can escalate to a felony aggravated DUI under 625 ILCS 5/11-501(d)—even if there was no chemical test.

Felony DUI charges bring prison time, permanent record consequences, and restrictions on firearm rights and employment.

How a DUI Conviction Affects Your Future—Test or No Test

Many people facing DUI charges focus only on avoiding jail. But the long-term consequences are just as damaging, especially for those convicted without breath test evidence.

A DUI conviction—even for a first offense—can:

Disqualify you from certain jobs, especially in law enforcement, healthcare, or transportation
Trigger immigration consequences if you’re not a U.S. citizen
Lead to higher auto insurance rates or cancellation
Bar you from professional licensing or security clearances
Result in loss of driving privileges for years

And once your license is revoked, reinstating it is complex. You must undergo a formal hearing before the Illinois Secretary of State, prove rehabilitation, and install a breath alcohol ignition interlock device (BAIID) in your car.

The Importance of Having a Defense Attorney From Day One

The sooner you hire a DUI defense attorney, the more control you have over the outcome. At The Law Offices of David L. Freidberg, we intervene early—before you even go to your first court date—so we can challenge the basis for the stop, examine the arrest report, and prepare a defense.

An attorney with DUI trial experience can:

Challenge the traffic stop for lack of reasonable suspicion
Suppress field sobriety results due to improper administration
Attack the officer’s credibility and arrest process
Handle the Statutory Summary Suspension hearing
Negotiate for reduced charges or dismissal

And most importantly, we make sure that one mistake—or an officer’s overreaction—doesn’t ruin your life.

Can DUI Without a Breath Test Be Beaten? Yes.

No breath test doesn’t mean no conviction—but it doesn’t mean you’re doomed either. We’ve successfully defended many clients arrested on suspicion alone. Probable cause is a low standard, but courtroom conviction is a high one.

Without a BAC result, the state has to prove your impairment beyond a reasonable doubt. That gives the defense multiple opportunities to undermine their case.

Whether through motions to suppress, discrediting field sobriety tests, or challenging police procedure, a well-prepared defense can often lead to dismissal or reduction of charges.

Charged With DUI in Chicago Without a Failed Breath Test? Call Now.

Don’t wait for the court date to act. The State is already building a case against you—even without test results. You need an aggressive legal defense ready to dismantle their case from the ground up.

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.

Arrested for DUI in Illinois Without a Breath Test Failure? Yes, It Happens—and Here’s Why