Can I Still Challenge a License Suspension If I Failed the Breath Test in Illinois?

As a DUI defense attorney in Chicago, one of the most common questions I get from clients is this: “Can I still fight the license suspension even though I failed the breath test?” The short answer is yes—but timing and legal strategy are critical.

Many drivers assume that once they blow over the legal limit of 0.08, the battle is lost. Police officers and prosecutors would like you to believe that, but it’s not true. In Illinois, the statutory summary suspension of your driver’s license is not a conviction. It’s an administrative action by the Secretary of State—and it can be challenged in court.

Let me break it down based on how DUI cases work in Chicago, what the law actually says, and why hiring the right DUI lawyer can completely change the outcome of your case.

DUI Arrests and Summary Suspensions in Chicago

In Chicago, DUI arrests are a regular occurrence. Whether it’s a Friday night in Wrigleyville or a random Tuesday in Bronzeville, Chicago police patrol for signs of impaired driving and frequently stop drivers for minor traffic violations that escalate into DUI investigations. It’s not uncommon for someone to be pulled over for something as simple as failing to signal or having a broken tail light—only for the officer to begin asking questions about drinking.

If the officer suspects impairment, they’ll often ask the driver to perform field sobriety tests, followed by a breathalyzer test at the scene or back at the station. If the breath test result comes back 0.08 or higher, Illinois law triggers an automatic license suspension under 625 ILCS 5/11-501.1.

This is known as a statutory summary suspension, and it’s completely separate from the actual DUI criminal charge. Even if your DUI charge is later dismissed or reduced, the suspension can still go into effect unless you fight it in court. That’s why having a Chicago DUI lawyer who understands both the criminal and administrative sides of a DUI case is crucial.

Illinois Law and the Right to Challenge a Failed Breath Test Suspension

Illinois law gives drivers the right to challenge their license suspension after a DUI arrest—even if they failed the breath test. The legal process to do this is through a Petition to Rescind the Statutory Summary Suspension, which must be filed in the circuit court of the county where you were arrested.

In Chicago and Cook County, this means you or your attorney will file at the Leighton Criminal Court Building at 26th and California or another relevant branch court depending on where the arrest occurred.

This petition allows your attorney to challenge:

• Whether the officer had reasonable grounds to stop and arrest you
• Whether you were properly warned about the consequences of refusing or failing the test
• Whether the testing procedures were valid and legally compliant
• Whether your due process rights were violated during the arrest

Even if you blew over the legal limit, you might win the hearing if the officer failed to read you the proper warnings to motorist, if the breathalyzer device wasn’t certified, or if the test was administered by someone who lacked proper training.

Too many people miss this window because they think the failed breath test means they have no chance. In reality, challenging the summary suspension can restore your driving privileges and set the stage for a stronger defense in your criminal case.

Realistic DUI Arrest Example in Logan Square

Let’s consider a realistic example from a DUI case in Logan Square. A driver is pulled over at 2:15 a.m. for allegedly speeding. The officer claims to detect the smell of alcohol and requests that the driver exit the vehicle. After field sobriety tests, the driver is arrested and taken to the station, where a breath test shows a BAC of 0.10.

The driver is issued a Notice of Statutory Summary Suspension and a court date.

But here’s what we uncovered:

• The bodycam footage showed the officer did not administer the tests in accordance with NHTSA guidelines.
• The “warnings to motorist” form was not properly signed or timestamped.
• Calibration logs showed the breathalyzer hadn’t been certified within the required 62-day window.

I filed a Petition to Rescind on behalf of my client. At the hearing, the officer admitted on cross-examination that he wasn’t certain when the machine was last tested and couldn’t confirm whether he advised the driver of their rights before the test. The judge granted the petition, rescinding the suspension, which meant my client kept their driving privileges while we worked on resolving the DUI criminal charge.

This outcome was only possible because the challenge was filed quickly and supported by a solid legal strategy. Without that action, my client would have lost their license for six months or more, and that would have made keeping a job and supporting their family a lot harder.

Why Hiring a DUI Lawyer Makes the Difference

DUI law is one of the most technical and detail-heavy areas of criminal law in Illinois. The breath test equipment must meet specific maintenance standards. The officer must follow exact procedures. The paperwork must be complete. The timing of notices, hearings, and filings matters.

Without legal help, you’re likely to miss opportunities to fight back. A DUI defense lawyer in Chicago can:

• File the necessary court documents to stop or delay the suspension
• Obtain and analyze evidence like police reports, video footage, and calibration logs
• Cross-examine the arresting officer at the suspension hearing
• Identify Fourth Amendment violations (like illegal stops or arrests)
• Negotiate with prosecutors for reduced charges or dismissal
• Represent you in both the criminal and administrative parts of your case

I’ve represented clients across Cook County, DuPage County, Will County, and Lake County. I know how local judges and prosecutors handle these hearings, and I know how to position your case for the best possible outcome—even when the breath test isn’t in your favor.

What Happens If You Don’t Challenge the Suspension?

If you don’t challenge the suspension within 90 days (and ideally much sooner), your license will be suspended automatically on the 46th day after your arrest. For first-time DUI offenders, this means:

• 6-month suspension if you failed the breath test
• 12-month suspension if you refused testing

For second offenses within five years:

• 12-month suspension for failing
• 3-year suspension for refusing

In some cases, you may be eligible for a Monitoring Device Driving Permit (MDDP) and required to install a BAIID device (breath ignition lock) in your car. But if you miss the window to contest the suspension, your options are limited, and you’re left with more hoops to jump through.

This is why the first days after a DUI arrest are so important. They’re not just about dealing with the charge—they’re about protecting your license, your job, and your daily life.

FAQs: Challenging DUI License Suspensions in Illinois

Is a failed breath test always accurate?
Not always. Breathalyzer results can be impacted by medical conditions, device malfunction, recent use of mouthwash, and even improper administration. A Chicago DUI lawyer can subpoena calibration logs and operator certifications to look for flaws.

How long do I have to file the petition to fight the suspension?
You have 90 days from the date of arrest, but you should file as soon as possible. Your first court date may be before that, and hearings typically occur within 30 days of filing the petition.

Can I drive while the suspension is pending?
Yes. The suspension doesn’t start until the 46th day after the arrest. If you file a petition and the hearing isn’t resolved by then, you may still be eligible for a permit.

Can I get my license back if I already missed the deadline to challenge it?
Once the suspension is in place, it’s much harder to undo. You may qualify for a restricted driving permit or an MDDP, but this comes with requirements like a BAIID installation. A Chicago DUI defense attorney can guide you through those steps.

Can I beat a DUI if I failed the breath test?
Yes. The breath test is not infallible. If the stop was unlawful, if testing procedures weren’t followed, or if your rights were violated, the test results may be suppressed. I’ve won many DUI cases—even with breath test results over 0.08.

Do I need a lawyer if I plan to plead guilty?
Yes. Pleading guilty without legal advice can lead to harsher penalties, a permanent conviction, and long-term consequences. A DUI attorney in Chicago can help you seek court supervision or negotiate for reduced penalties.

Is the DUI suspension separate from the criminal case?
Yes. The summary suspension is an administrative action handled by the Secretary of State. The DUI criminal case proceeds in court. You need a lawyer who handles both sides of the process.

How much does it cost to hire a DUI lawyer in Chicago?
Costs vary based on the complexity of the case, but most lawyers—including our office—offer free consultations and payment plans. The cost of not hiring a lawyer, in terms of license loss and criminal records, is often far greater.

Call The Law Offices of David L. Freidberg – DUI Defense You Can Count On

If you were arrested for DUI and failed a breath test, don’t assume it’s over. You still have legal options. You can still challenge the license suspension. And with the right legal representation, you may even beat the charge entirely.

At The Law Offices of David L. Freidberg, I’ve spent my career defending good people in tough situations. I know the laws, the courts, and the defenses that work.

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.