DISCLAIMER: The answers published here pertain only to Illinois. Further, each case is fact specific, and proper advice can only be given by a qualified attorney who is familiar with the facts of your case. If you haven’t formally engaged us in writing signed by us, we are not your attorneys. These answers are based on our general training and experience and may not be the best advice in your particular circumstances.
1. Should I blow?
The short answer is NO.
The PBT (portable, preliminary breath test) breath test. In Illinois, you have an absolute statutory right to refuse to blow, or give a breath test, into a preliminary (or portable) breath test device. Just because it is too inaccurate to be used at your trial, don’t think that the test result cannot be used against you in court. It can, and will, be used to prove that the officer had probable cause to arrest you.
The Evidentiary breath test. It is not a crime to decline the larger, more accurate, breath test device which will be used against you at trial. It’s easy to spot these devices. They are either a bench-top machine with a keyboard, or a laptop machine in the squad car. They are used AFTER your arrest. They always spit out a paper receipt. In Illinois, before you blow, the Officer will read you a long, complicated “Warning to Motorist.” What do you normally do when warned about doing something? You don’t do it, and you shouldn’t blow when warned by the Officer. The warning itself is seriously misleading. It says if you blow and the result is over .08%, and if you are a “first offender,” your license will only be suspended for six months, but if you refuse, your license will be suspended for one year. The misleading part is what the warning doesn’t tell you. It doesn’t tell you that if you blow and the result is over .08%, which alone can convict you of DUI, regardless of how well you were driving. In that case, the warning also doesn’t tell you THEN your license will not be “suspended,” it will be REVOKED indefinitely, and you probably will not get any driving relief for a year or more.
2. Do I have to submit to a blood test?
The Short Answer is NO. You only have to submit to a blood test if the officer secures a warrant for the test. But if you consent to the test, it can be used against you even if there is not a warrant. If there is a warrant, you have to submit. Otherwise, you could be charged with a felony.
3. What should I say when the officer asks me to do some field sobriety tests to make sure I am good to drive?
The short answer is: Say NO, thank you. Doing Field Sobriety Tests is OPTIONAL in Illinois. You are not required to perform these guaranteed to fail tests. They will be used against you. If the officer asks you to get out of your car and do some tests to make sure you are safe to drive, he already has observed things which he believes make you DUI. The tests are inaccurate, extremely hard to pass because they are scored extremely strictly and because they put you in awkward positions and require that you do awkward things.
4. Do I have to get out of my car if the officer asks me to do so?
The short answer is No. All you have to do is hand the officer your drivers license and proof of insurance. You only have to get out of your car if the officer orders you to do so or tells you that you are under arrest. If the officer orders you to do so, you have been seized. If the officer tells you that you are under arrest, then you must submit or risk the more serious charge of Obstruction of Justice or Resisting a Police Officer. You must not struggle or try to run away.
But even after being ordered out of the car or being placed under arrest, you do not have to perform field sobriety tests, blow into a PBT (portable or preliminary breath test) or any other breath test. In other words, don’t resist the arrest, but also don’t volunteer or consent to perform tests.
If the officer orders you out of the car without placing you under arrest, he can keep you there only so long as to effectuate the purpose of the stop. You are not required to answer questions or do any field sobriety tests.
5. What should I say if the officer asks me questions?
The short answer is SAY NOTHING. You have the right to remain silent. It is with you all the time in every circumstance. USE IT. No matter whether you are under arrest, merely suspected, or approached by an officer and not even suspected of anything, you ALWAYS have the right to remain silent.
6. What should I do if the officer asks me to come back to his car?
The short answer is: Say no thank you.
The officer has the right to detain you for a brief period of time to write you a ticket for the alleged traffic offense. You should only go back to the patrol car if he tells you that you are under arrest. The chances are good that the only reason the officer asks you to come to his car is to be able to testify later against you that the odor of alcohol he detected was coming from your breath, not just your car.
7. What is the difference between being detained and being arrested?
You can be detained for a short period of time without being arrested. To detain you the officer has to have a REASONABLE, ARTICULABLE suspicion, not just a hunch, that you have committed or are committing a crime. That would include a minor traffic violation. Then, the officer can detain you only for long enough to write a ticket. Anything longer is an unlawful prolonging of a traffic stop which your lawyer may use to get your arrest quashed. To arrest you the officer must have probable cause, which means that a reasonably cautious person would believe that you have committed a crime. You are arrested if the officer declares that you are under arrest. You can also be arrested if the officer says nothing but puts you in handcuffs, places you in the squad car, or takes you to a police station.
8. How can I keep from being arrested for DUI?
If you have had anything to drink in the last 24 hours and you are stopped for any reason by a law enforcement officer, your best chance to keep from being arrested is to decline to answer questions, refuse to do field sobriety tests, and refuse to blow into a preliminary breath test (PBT). Complying with everything the officer asks, and answering questions, will typically guarantee your arrest. ALL of the questions are intended to incriminate you, the TESTS are subjective, and the PBT is unreliable.
Even if you are arrested, if you follow this advice, and refuse the evidentiary breath test, and are polite (because a judge and jury will see the audio/video being recorded by the officer), the chances are good that your case will be dismissed or won.
The police want to extend the stop as long as possible to garner evidence against you. When you refuse testing and don’t answer questions, you detract from the evidence supporting your arrest and conviction.
9. Are roadblocks legal?
The Short Answer is Yes. If you find yourself approaching a roadblock, you should assume for the time being that the roadblock is legal. You should consider hiring an experienced DUI lawyer if you are arrested as a result of being stopped at the roadblock. An experienced DUI lawyer will subpoena the police department’s roadblock documentation to determine if the roadblock was designed to deter and detect DUI violators and if the roadblock was operated following constitutionally acceptable procedures. The court will weigh the following factors if you decide to challenge the constitutionality of the roadblock. (1) the presence of procedural guidelines; (2) the absence of discretion in individual field officers; (3) some indication to the public of the official nature of the operation; and (4) selection of the site by supervisory personnel.
10. Can I be arrested for avoiding a roadblock?
The short answer is: Surprisingly, NO. A recent case in Illinois held that it is not a violation of the law to avoid a roadblock so long as you don’t violate any other traffic law while doing so. If an officer stops you solely for avoiding a roadblock, the stop is illegal, and evidence gained against you after the stop must be suppressed; This means that your arrest will be thrown out. If an officer stops you for avoiding a roadblock, don’t argue with him, it is not your job to educate the officer – you’ll be better off letting your lawyer do that in court.
11. They didn’t read me the Miranda rights, shouldn’t my case be thrown out?
The short answer is: Probably Not. While you always have the right to be silent, you must use it even when the officer doesn’t read it to you. You have the RIGHT, but you also must KNOW you have the right and have the ABILITY to exercise your right. Why? Because the Miranda warning only applies when you are (1) in custody – like kept in a cell or interview area of a police station, and (2) the officer is asking you questions. If you are DETAINED briefly and not put under arrest, and the officer is not asking you questions, the officer IS NOT REQUIRED to tell you that you have the right to remain silent. Ironically, the first few moments of a traffic stop, or other detention, is when many people answer questions which hurt them in court. DON’T BE ONE OF THEM.
12. Can I be arrested for DUI in my driveway or private parking lot?
The short answer is Yes, but there are potential good points. You can be arrested and convicted in Illinois anytime you’re intoxicated and in control of a motor vehicle. You don’t have to be driving, and you don’t have to be on a public street. However, if you are on private property (and you were not observed by an officer having driven to there on a public street or highway), your driver’s license cannot be summarily suspended. If it is, let your lawyer know the facts as soon as possible so that he can file the correct motion to get your license back at the beginning of your case.