Is Refusing A Breath Test During a DUI Arrest in Illinois A Good Idea?

When Saying “No” to a Breath Test in Illinois Might Actually Help You—And When It Can Hurt You

You’re pulled over late at night in Chicago after having dinner with friends. Red and blue lights fill your rearview mirror. You roll down your window and the officer asks, “Have you had anything to drink tonight?” Before you know it, you’re being asked to take a breath test. You hesitate. Should you take it? Or is refusing the breath test a smart move?

Illinois law makes this a tough decision. There are both pros and cons to refusing a breath test, and what’s “smart” for one person could be a huge mistake for another. Whether you’ve already refused or you’re trying to understand your rights ahead of time, the consequences are serious—and lasting.

The good news is that refusing the test does not equal a conviction. But it does trigger legal consequences you’ll have to fight with the help of a DUI defense lawyer. Understanding when refusal makes sense, what risks come with it, and how your lawyer can turn it into a strong defense is essential if you want to avoid the most damaging penalties.

What Illinois Law Says About Breath Test Refusals

If you’re lawfully arrested for driving under the influence in Illinois, police have the right to ask you to take a breath, blood, or urine test under the implied consent law. This law, found in 625 ILCS 5/11-501.1, states that anyone who operates a motor vehicle on public roads has given their consent to chemical testing after arrest.

Refusing a breath test in this context results in a statutory summary suspension of your driver’s license. For a first-time refusal, the suspension is 12 months. For a second or subsequent refusal, the suspension is 3 years. This suspension begins 46 days after the notice is served and applies regardless of whether you’re convicted of the DUI.

You will not go to jail simply for refusing. But the suspension is real and automatic unless you successfully challenge it in court.

When Refusing a Breath Test Might Help Your Case

One of the most powerful pieces of evidence the State can use against you in a DUI case is your blood alcohol concentration (BAC). A result of 0.08% or higher creates a presumption of intoxication. With that number, prosecutors have a solid case.

But if you refuse, that number doesn’t exist. Without it, the prosecution has to rely on other types of evidence—like your driving behavior, the officer’s observations, and field sobriety test results.

If you’re confident that your BAC is well above the legal limit and there were no aggravating factors (such as a crash, injury, or child in the car), refusing the test may take the strongest piece of evidence off the table. It forces the State to work harder to prove impairment.

For repeat offenders or drivers with commercial licenses, refusing might prevent more severe consequences if it results in a weaker prosecution. But make no mistake—it’s still risky.

When Refusing a Breath Test Can Backfire

While refusing the test can limit the evidence against you, it also triggers immediate consequences with the Secretary of State. The statutory summary suspension goes into effect whether or not you’re found guilty.

Worse, your refusal can be used against you at trial. Prosecutors often argue that refusing the test is a sign of guilt—that you refused because you knew you were intoxicated.

And if you have a prior DUI or previous summary suspension, your refusal could push your case into felony territory under 625 ILCS 5/11-501(d). Felony DUI comes with mandatory jail or prison time in some cases, particularly for repeat offenders.

How Prosecutors Prove DUI Without a Breath Test

Some drivers assume that without a BAC result, the prosecution has no case. That’s simply not true.

Prosecutors often rely on the arresting officer’s testimony, which includes:

Observations of your appearance (bloodshot eyes, slurred speech, flushed face)
Your behavior and coordination
Performance on field sobriety tests (if taken)
Your driving behavior (weaving, running lights, etc.)
Statements you made (admitting to drinking, for example)
Video footage from dashcams or bodycams

Even without a breath test, these observations can lead to a conviction. That’s why hiring an experienced DUI attorney is crucial. Without one, you may not know what evidence can be challenged—or how to suppress it.

Challenging the License Suspension After a Refusal

One of the first steps your attorney will take is filing a petition to rescind the statutory summary suspension. You have the right to request a hearing within 90 days of receiving the suspension notice. At this hearing, your lawyer can challenge:

Whether the officer had probable cause to arrest you
Whether you were properly advised of the consequences of refusal
Whether you actually refused (sometimes officers misreport cooperation)

If the hearing is successful, your license may be reinstated while the criminal case continues. Winning this hearing does not dismiss the DUI charge, but it allows you to keep driving during the legal process—often with a Monitoring Device Driving Permit (MDDP) if needed.

What Happens if You’re Convicted of DUI After a Refusal?

If the State still convicts you of DUI, the penalties are similar to those for a case with a failed breath test. For a first offense, this includes:

Up to 364 days in jail
Up to $2,500 in fines
Mandatory alcohol education or treatment
Community service
Court supervision (if eligible) or a criminal conviction on your record

The difference is that a conviction combined with a refusal may carry more weight with the judge during sentencing. Judges view refusal cases as potentially more serious, especially when there’s no cooperation or remorse.

Should You Ever Refuse the Test?

There’s no universal answer. But a few general guidelines apply:

If you’ve had a very small amount to drink and are confident you’ll blow under 0.08%, it’s usually safer to take the test.
If you’ve had a lot to drink and believe you’re well over the limit, refusal may reduce the evidence available to convict you.
If you’re a repeat offender or have aggravating circumstances, talk to a lawyer immediately before deciding how to proceed.

In all cases, refusing does not eliminate risk—it shifts it. That’s why your best move is to get a DUI lawyer involved as early as possible.

The Role of a DUI Attorney in Refusal Cases

If you refuse a breath test, the pressure on your lawyer increases—but so do the opportunities. Without a clear BAC number, more of the case comes down to credibility, procedure, and the officer’s word. That’s where skilled defense makes a real difference.

A DUI lawyer will:

Analyze the legality of the stop and arrest
Review bodycam and dashcam footage
Challenge field sobriety test accuracy
File motions to suppress statements or other evidence
Fight the license suspension and negotiate for a hardship permit
Argue for court supervision or reduced charges when possible

This isn’t just about avoiding jail. It’s about saving your license, your career, and your future.

Takeaways for Drivers in Chicago and Beyond

Chicago police take DUI enforcement seriously. With the rise in technology and camera use, officers have more tools than ever to support their cases. But they also make mistakes—and your lawyer’s job is to find those mistakes and use them to your advantage.

Refusing a breath test may help in certain cases, but it comes at a price. If you’ve already refused, your legal strategy must be aggressive and early. Don’t wait until your first court date. Every day you delay could hurt your chances of protecting your license or getting your case dismissed.

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.