Refused the Breath Test in Illinois? Here’s How a Chicago DUI Lawyer Can Still Fight the Suspension

You Still Have Legal Options After Saying “No” to a Breath Test

Many drivers in Chicago assume that refusing a breath test automatically seals their fate when it comes to a DUI case. But that’s not always true. In fact, if you refused a chemical test after being pulled over for suspicion of DUI in Illinois, you may have created an opportunity to defend yourself more effectively—if you act quickly and hire the right Chicago DUI lawyer.

The Illinois Vehicle Code requires drivers to submit to testing under certain circumstances. But it also provides procedures for challenging the statutory summary suspension that occurs when someone refuses testing. If you don’t take action within the strict timeframes laid out in the law, you’ll lose your license even before you step foot in a courtroom.

As a criminal defense attorney in Chicago, I’ve represented countless clients facing DUI charges with a test refusal. Every case is different, and whether it’s a first offense or you’re dealing with a second or third DUI, the defense strategy begins with understanding your rights, timelines, and what can be challenged both in court and with the Illinois Secretary of State.

Refusing the Breath Test Triggers a Civil Penalty — But It’s Not the End

In Illinois, DUI charges fall under 625 ILCS 5/11-501 and related sections governing implied consent and license suspension. If a police officer arrests you for DUI and has probable cause to believe you’re under the influence, they will ask you to submit to chemical testing. If you refuse, you’re hit with an automatic statutory summary suspension.

Here’s how that breaks down:

First refusal = 12-month suspension
Second refusal within five years = 3-year suspension

These penalties are enforced by the Secretary of State and are independent of your criminal case. That means even if your DUI charge is later dismissed or you’re found not guilty, the suspension still stands—unless you take legal steps to fight it.

You have 30 days from the date of your arrest to request a rescission hearing in Cook County court. This is not the same as your criminal DUI case. At the hearing, your Chicago DUI attorney will challenge the basis for the suspension by examining:

Whether the officer had probable cause to stop and arrest you
Whether the refusal actually occurred
Whether you were properly advised of the consequences
Whether you were denied your right to speak with counsel

A win at this hearing means the suspension is rescinded, and you keep your driving privileges. The longer you wait, the fewer your options. Missing that 30-day window almost guarantees the suspension will go into effect on the 46th day after your arrest.

What the Prosecutor Still Needs to Prove Without a Breath Test

While refusing the breath test affects your driving privileges, it can also influence how your DUI criminal case is prosecuted. Illinois law gives prosecutors two main paths to prove DUI:

Showing a BAC of 0.08 or more
Showing that you were under the influence of alcohol or drugs to the point that you couldn’t safely drive

Without a test result, they can’t use the first route. That forces the state to rely on the second—and it’s a much more subjective case.

Without chemical evidence, prosecutors typically lean on:

Officer observations (bloodshot eyes, slurred speech, odor of alcohol)
Field sobriety test results
Driving behavior (weaving, speeding, swerving)
Bodycam and dashcam video
Statements you made during or after the arrest

These elements can be weak, and a skilled Chicago criminal defense lawyer can attack them in multiple ways. If the field sobriety tests were administered incorrectly, if the officer’s observations were inconsistent, or if your rights were violated at any point, we can file motions to suppress or seek dismissal of the charges.

A Realistic Example from Chicago’s South Side

A driver is pulled over near 79th Street and Halsted in the Auburn Gresham neighborhood for speeding. The officer says the driver smelled like alcohol and was “staring straight ahead” and “nervous.” The driver refused both the field sobriety tests and the breath test.

He’s charged with DUI and served with notice of the statutory summary suspension.

As his DUI lawyer in Chicago, I file a petition to challenge the suspension. At the rescission hearing, I point out that the officer failed to properly advise the driver of the consequences of refusal as required under 625 ILCS 5/11-501.1(c). The officer admits that he didn’t read the “Warning to Motorist” form word-for-word and didn’t provide a written copy. That’s a violation of the procedure. The judge agrees and rescinds the suspension.

In the criminal case, I challenge the arrest report and show that the dashcam video doesn’t support the claim that the driver was impaired. No reckless driving. No swerving. No slurred speech. With no breath test and weak observational evidence, the prosecutor agrees to dismiss the DUI in exchange for a plea to a minor traffic violation.

This kind of outcome doesn’t happen by luck—it requires immediate, aggressive representation by a Chicago DUI defense lawyer who understands the local courts and knows what to challenge.

Pretrial Compliance: How Missed Check-Ins and Curfew Violations Derail DUI Cases

Many clients are surprised to learn that what they do after arrest but before trial can heavily influence the outcome. If you’re released on bond or enrolled in pretrial monitoring, you’ll be expected to:

Check in with Pretrial Services
Appear for all court dates
Abstain from drugs and alcohol
Submit to random tests if ordered
Respect any curfew or geographic restrictions
Make required payments on time

Failing to meet these expectations can result in technical violations. While not new crimes, these violations show the court that you may not take your legal situation seriously. Judges in Cook County watch for patterns. Even if you’re doing everything else right, showing up late, missing a test, or forgetting a payment can change how you’re sentenced—especially in borderline cases.

Compare this with substantive violations, such as:

Committing a new offense
Driving on a suspended license
Tampering with a SCRAM device or ankle monitor

These violations often result in immediate bond revocation or jail pending trial.

As your criminal defense attorney in Chicago, I don’t just represent you in court—I help you stay on track. If you miss a court date or check-in, I can file a motion to reinstate bond, explain the reason to the judge, and minimize the damage. In many cases, this has helped save sentencing options like court supervision, reduced charges, or dismissal.

FAQs: Refusing a Breath Test and Fighting a DUI in Chicago

Can the state still prove DUI if I refused the breath test?
Yes, but it’s harder. Without chemical test results, prosecutors must prove impairment based on officer testimony and observational evidence. A strong defense can poke holes in this kind of case. A Chicago DUI lawyer can help suppress bad evidence and build a better strategy.

Does refusing the test mean I’ll automatically lose my license?
Not automatically. You have the right to file a Petition to Rescind the statutory suspension within 30 days. If the hearing goes in your favor, you may avoid suspension entirely. But you need to act fast and work with a DUI attorney who understands the process.

What if the officer never told me I’d lose my license for refusing?
That’s a violation of Illinois law. Officers must read a “Warning to Motorist” that explains the consequences of refusing. If they didn’t, or they did it incorrectly, your Chicago criminal lawyer can raise that as a defense to stop the suspension.

Can I still drive after refusing the test?
Yes, in many cases. First-time offenders may qualify for a Monitoring Device Driving Permit (MDDP) with a BAIIDdevice installed. This allows you to drive legally during the suspension period. Your attorney can help with the application.

What if I’ve refused the test before?
If you refused a breath test in a previous case within the last five years, your new refusal triggers a 36-month suspension, and you’re not eligible for a driving permit. These situations are more serious and require immediate help from a DUI lawyer in Chicago.

How does refusal affect a commercial driver’s license (CDL)?
CDL holders face stricter rules. A single refusal results in disqualification of your CDL. This can destroy a driving career. If you hold a CDL, speak to a Chicago DUI attorney immediately to see if the suspension or charge can be challenged.

Will the court look at missed court payments as seriously as missing court itself?
Yes, though it may depend on the judge. Late payments can result in technical violations. If you’re having trouble making payments, your lawyer can often request adjustments or ask the judge to extend deadlines.

Can a breath test refusal be used against me in court?
Yes, the refusal itself is admissible evidence. Prosecutors may argue that it shows “consciousness of guilt.” A DUI attorney can argue back that there are many reasons people refuse—fear, confusion, or distrust in police—not just guilt.

Why You Need The Law Offices of David L. Freidberg to Defend Your DUI Refusal Case

A breath test refusal puts you at the intersection of two legal battles—one for your license, and one for your freedom. Without fast action and the right legal defense, you could lose both. This isn’t the time to hope for a break or try to handle things on your own.

I represent clients across Chicago and Cook County, including DuPage, Will, and Lake Counties. My office knows the judges, prosecutors, and how DUI refusal cases are handled in each courtroom. Whether you were stopped in River North or Rogers Park, I’ll make sure your rights are protected at every step.

Why Defendants Choose The Law Offices of David L. Freidberg

Clients facing DUI charges in Chicago need more than reassurance. They need action. At The Law Offices of David L. Freidberg, I focus on immediate defense, aggressive motion practice, and protecting driving privileges whenever possible.

I represent clients throughout Chicago, Cook County, DuPage County, Will County, and Lake County. My approach is built on preparation, accountability, and courtroom advocacy.

When You Need a Fighter, Call Us!

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