Can You Be Arrested for DUI in Illinois Without Failing a Breath Test?

DUI Arrests in Chicago: When the Breath Test Isn’t the Deciding Factor

In the heart of Chicago, where busy roadways meet constant police patrols, DUI arrests are part of everyday law enforcement activity. It’s a common misconception that you can only be arrested or charged with DUI in Illinois if you fail a breath test. The truth is, you can absolutely be arrested for DUI even if you refuse the breathalyzer or if your blood alcohol concentration is below the legal limit. Arrests can occur based on the totality of circumstances, including your behavior, physical signs of impairment, and how you perform on field sobriety tests.

In Illinois, DUI laws fall under 625 ILCS 5/11-501. The statute does not require a failed breath test for arrest. Instead, it defines DUI as operating a motor vehicle while under the influence of alcohol, drugs, or a combination that impairs your ability to drive safely. In many cases, the arrest decision is based on the officer’s judgment, field sobriety results, and probable cause developed during the stop.

In Chicago, where law enforcement is particularly aggressive about DUI enforcement, this approach means people are often arrested and charged even without scientific test results. The legal system permits it, but that does not mean a conviction is automatic. Knowing how DUI charges are built without chemical proof is essential to building an effective defense.

Understanding Probable Cause and Field Sobriety Tests in Illinois DUI Arrests

The legal basis for a DUI arrest is “probable cause.” In Illinois, that means the arresting officer must reasonably believe that a crime is being committed—in this case, that the person is driving under the influence. The breath test result is one possible piece of evidence, but it is far from the only one. Under 725 ILCS 5/107-2, an officer may make a warrantless arrest when they have reasonable grounds to believe a person is committing or has committed a crime.

Field sobriety tests are commonly used to develop probable cause. These include the walk-and-turn test, the one-leg stand, and the horizontal gaze nystagmus test. Although these are supposed to be standardized, many factors affect the outcome. Nervousness, uneven pavement, fatigue, medical conditions, or footwear can cause a completely sober person to appear intoxicated.

In a recent case out of Chicago’s North Side, our client was pulled over for an alleged lane violation. The officer noted slurred speech and red eyes. The client refused the breath test, but based on his performance on field sobriety tests, he was arrested. We later obtained bodycam footage showing that the client had explained he had been crying due to personal stress, not intoxication. We filed a motion to suppress the arrest, arguing that the officer lacked probable cause when viewed in totality. The judge agreed, and the case was dismissed.

This type of outcome is possible when your defense attorney is experienced in challenging arrests based on subjective observations and weak probable cause.

Refusing a Breath Test: What Illinois Law Really Says

Illinois is an implied consent state, which means that by driving on Illinois roads, you are deemed to have consented to chemical testing if arrested for DUI. Refusing the breathalyzer or blood test comes with automatic administrative penalties, regardless of whether you are ultimately convicted.

Under 625 ILCS 5/11-501.1, refusal to submit to chemical testing will result in a Statutory Summary Suspension. For a first-time offender, the refusal leads to a 12-month license suspension. If you submit and fail the test (i.e., blow 0.08 or higher), the suspension is 6 months. For repeat offenders, the consequences increase. Refusal can result in a three-year license suspension for someone with a prior DUI or Statutory Summary Suspension in the past five years.

Importantly, this administrative suspension is separate from any criminal DUI penalties. Even if the criminal charge is dismissed, the suspension may still remain unless properly challenged in court. A lawyer can file a Petition to Rescind the Statutory Summary Suspension and request a hearing within 90 days of notice. If successful, your driving privileges can be reinstated.

Our firm routinely handles these petitions in Cook County and has a record of success in both technical and evidentiary challenges. Often, officers fail to properly warn defendants of their rights, misadminister tests, or fail to appear at the rescission hearing.

What Happens After Arrest: Charges, Court, and Consequences

If you’re arrested for DUI without failing a breath test, the charge will still move forward based on the arrest report, the officer’s observations, and any other evidence collected. The prosecutor will rely on this documentation to file the case. Under Illinois law, a first-time DUI without aggravating factors is a Class A misdemeanor under 625 ILCS 5/11-501(c), punishable by up to 364 days in jail, $2,500 in fines, and mandatory alcohol education or treatment.

However, certain factors can elevate the charge to a felony, known as Aggravated DUI under 625 ILCS 5/11-501(d). Examples include:

• Causing serious bodily injury while impaired
• Driving on a suspended or revoked license
• Having prior DUI convictions
• Transporting a child under 16

These can result in a Class 4, Class 2, or even Class X felony, carrying prison sentences ranging from 1 to 30 years.

Beyond jail and fines, a conviction affects your employment, especially for jobs requiring a clean driving record or professional licensure. Employers often run background checks, and a DUI conviction will appear. For non-U.S. citizens, DUI arrests and convictions can lead to immigration consequences, especially if the charge is elevated to a felony. A conviction can trigger deportation proceedings or affect future immigration benefits.

Long-term, a DUI conviction will remain on your permanent criminal record, affecting future employment, housing, and professional licensing. DUI convictions are not eligible for expungement or sealing in Illinois, even for first-time offenders.

The Criminal Trial Process in DUI Cases and a Real Case Example

A DUI case in Chicago follows a defined process: arraignment, pretrial hearings, motion practice, and possibly trial. The outcome of each stage depends heavily on the work your attorney does from the beginning.

We defended a client in DuPage County charged with DUI after refusing the breath test. The officer claimed she showed signs of intoxication, including poor balance and bloodshot eyes. We requested and reviewed all bodycam footage and discovered that our client had recently had eye surgery, which explained the redness, and was wearing heels on uneven pavement. We retained an expert witness on biomechanics to support our defense. Before trial, we filed a motion to suppress based on lack of probable cause. The judge granted it, and the charge was dismissed.

This case underscores the importance of litigation-focused defense. Without a lawyer prepared to challenge the stop and evidence, the client could have faced conviction, license loss, and a permanent record.

The Role of Evidence in DUI Arrests Without Failed Breath Tests

When there’s no breath test failure, the prosecution leans heavily on circumstantial evidence. This may include field sobriety test performance, officer observations, video footage, witness statements, and driving behavior. Officers often testify about “strong odor of alcohol,” “slurred speech,” or “unsteady gait.” These subjective observations are vulnerable to cross-examination and counter-evidence.

Video footage is particularly useful. Dashcam or bodycam footage can contradict the police report. In one Cook County case, our client was reported as unsteady and slurring his words, but the footage showed calm, steady interaction. The discrepancy was used to impeach the officer’s credibility.

Medical records, weather conditions, footwear, fatigue, and anxiety can also be relevant. A skilled DUI defense attorney examines every angle to dispute the prosecution’s version of events.

Why Hiring an Attorney Is Critical for DUI Without a Breath Test

Some defendants believe that because they refused the breath test, or because they weren’t obviously impaired, they can explain their way out of the charge. That is almost always a mistake. Prosecutors move forward with DUI charges every day based on subjective evidence. Without experienced legal counsel, you could end up with a conviction that could have been avoided.

Your attorney can challenge probable cause, file motions to suppress, demand the officer’s personnel records, request expert analysis of the field sobriety tests, and raise medical or factual defenses. At The Law Offices of David L. Freidberg, we prepare every case as if it’s going to trial, and that approach has led to dismissals, acquittals, and charge reductions throughout Chicago and suburban courts.

Defenses Available in DUI Arrests Without Chemical Testing

Legal defenses depend on the specific facts of the case. However, common strategies include:

• Lack of probable cause for the traffic stop
• Improper administration of field sobriety tests
• Contradictory or insufficient officer observations
• Medical conditions mimicking intoxication
• Absence of credible evidence linking impairment to driving

We have successfully argued that fatigue, anxiety, and medical events caused the appearance of impairment. In other cases, video footage has directly contradicted the officer’s testimony. Every case deserves a fresh, detailed look.

What to Look for in a DUI Defense Attorney in Illinois

The right attorney can mean the difference between conviction and dismissal. Look for someone who tries DUI cases regularly, who knows how local judges and prosecutors approach refusal cases, and who isn’t afraid to litigate. Ask if they’ve handled breath test refusals, whether they challenge probable cause, and how they assess the officer’s conduct.

You should feel confident that your lawyer will investigate thoroughly, communicate clearly, and prepare your case for all possibilities.

Chicago DUI Defense FAQs

Can I be arrested for DUI in Chicago if I refuse a breathalyzer?
Yes. Police can arrest you based on probable cause alone, including your behavior, appearance, and field sobriety test results. Refusal may lead to license suspension but doesn’t stop the arrest.

Will I lose my license for refusing the breath test?
Likely, yes. Under Illinois’s implied consent law, a first refusal results in a 12-month Statutory Summary Suspension. You can contest this through a Petition to Rescind.

What if I was below 0.08 BAC but still got arrested?
You can be charged with DUI even if your BAC is below 0.08 if the officer believes you were impaired. The law allows charges if alcohol or drugs impair your ability to drive.

Can the DUI be dropped if I refused testing?
It depends on the other evidence. If probable cause is lacking or if the arrest process was flawed, your attorney may get the case dismissed.

Is a DUI conviction permanent in Illinois?
Yes. DUI convictions cannot be expunged or sealed, even for first-time offenders.

What are the long-term consequences of a DUI conviction?
Employment issues, insurance hikes, travel restrictions, immigration consequences, and professional license problems are common. It stays on your record permanently.

Does it help to hire an attorney immediately after arrest?
Yes. Early intervention allows your attorney to request evidence, file motions, and challenge license suspensions while preserving your defense options.

Why You Need a Lawyer If You’re Arrested Without Failing a Breath Test

Just because there’s no failed breath test doesn’t mean the case is weak—or strong. It means the outcome depends on legal strategy, evidence, and advocacy. Prosecutors file charges based on what they believe they can prove. Your defense depends on having a lawyer who knows how to expose the flaws in that evidence.

At The Law Offices of David L. Freidberg, we’ve represented countless individuals accused of DUI without failed chemical tests. We understand how these cases unfold in Chicago and across Cook, DuPage, Will, and Lake Counties.

Call The Law Offices of David L. Freidberg Today

If you’ve been arrested for DUI in Illinois—even if you didn’t take or fail a breath test—your rights, your license, and your future are on the line. Don’t assume the absence of a test result protects you. Let us protect you.

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.