Breath Test

Should You Take a Breath Test During a DUI Arrest in Chicago?

There are three available methods for Police to obtain direct evidence of one's blood alcohol concentration to further a DUI investigation or prosecution: 1) a blood draw, which allows for molecular analyses of whole blood to determine the actual level of alcohol in the system, 2) urine sampling, and 3) through one's breath.

Due to the logistical problems that blood and urine collecting pose for officers, from the delay involved following an arrest, to the chain of custody issues (how the sample is handled and moved from one place to another), and in the case of a blood draw, the need for a doctor, nurse, or phlebotomist, etc. to draw blood at a proper facility, police needed an alternative that would allow for an accurate determination to decide whether or not to prosecute a suspect. That method is the breath alcohol test.

What Does the Breath Test Measure?

Although there are different types of breath devices that have been used in the past, and are in use today, they all work on the same basic principle of alcohol absorption. You see, alcohol does not digest in the system the way food does. The alcohol you drink, rather than passing through the body after being broken down by the digestive process, remains chemically intact. It goes directly into the blood stream through the mouth, esophagus, stomach and small intestines.

It has been determined that many factors can affect the rate of absorption, but ultimately, what happens next is this: the alcohol in your blood passes through your lungs, and when the alcohol cells hit the alveoli in the lungs, they evaporate into your "alveolar air", which can then be detected and measured by the various testing devices.

The machines have been calibrated based upon one common principle, the fact that the average person has a ratio of alcohol in 2100 milliliters (ml) of alveolar air equal to 1 ml of whole blood. The machines do not, and cannot, factor in an individual's variance from the ratio. For some, the ratio can be as high as 3500:1, or as low as 1000:1, which of course will cause a significant variance to what an actual whole blood test would disclose. To this day, the most accurate measure of one's alcohol levels is by whole blood analysis.

Portable Breath Test Machines (PBT)

Nevertheless, Police can and do use Breath Testing as their primary investigative tool in DUI arrests. In Illinois, Police have available for their use Portable Breath Tests, for use in the field as an investigative tool to determine probable cause to arrest, and once a suspect is at the station, they have a stationary breath tester hooked up to a printer. However, Illinois also allows for police to use a portable breath test in conjunction with a printer, at say, a field sobriety check point, and like the stationary testing device, the results are admissible in court to prosecute a DUI arrest (as long as the proper foundational requirements are met).

History of Breath Testing

Originally, testing was done with Breathalyzer machines, which were arcane compared to today's devices. They worked on a liquid chemical reaction that would cause a needle to move, and the operator had to turn a handle to move the needle back, and the more he turned the handle, the higher the BAC. So an operator could easily manipulate results. In 1954, the Intoxilyzer was invented, which work by Infrared analysis, based upon the theory that alcohol cells will bend light a certain way, and by measuring the light waves through the breath sample, the level could be determined.

As of today, Illinois still permits the use of this type of device, The Intoxilyzer 8000, manufactured by CMI, Inc. Breathalyzers were required to be accurate within plus or minus 0.01 accuracy, which meant that a sample that read 0.08 could have an actual level between 0.07 to 0.09.

Today, the vast majority of departments utilize more modern technology, such as the Alcosensor, which is based upon fuel cell technology. The alveolar air passes through the fuel cell, causing an electrical reaction that determines the level of alcohol much more efficiently and with more accuracy (although still based upon the 2100:1 ratio only). Both the Intoxilyzer 8000 and the Alcosensor machines which are in use, are certified as accurate within plus or minus 0.004. This allows for very little variance in the testing numbers. Among the Alcosensor machines most commonly used today in Illinois, all four are manufactured by Intoximeter, Inc.: The Intoximeter EC-IR, the EC-IR II, the RBT IV (portable, in conjunction with a printer), and EC-IR II (serial nos. 10001 and above).

Why Take a Breath Test After a Chicago DUI Arrest?

Whether the machines are accurate within 0.01 or 0.004 BAC, the machines all operate on a flawed principle: that all people share the same ratio of blood in 2100 ml of alveolar air vs. 1 ml of whole blood. Also, absorption of alcohol into the blood is affected by so many factors that it is difficult for one to know just how much alcohol will be measured in their system at the time of the test, even if they thought their consumption was light to moderate. So why would one even think of submitting to testing if they have consumed a significant amount of alcohol?

Statutory Summary Suspension of License in Illinois

Well, an officer will advise you after your DUI arrest that if you submit to the breath test and are below 0.08, you will not have your driver's license suspended (although they often do not tell you that you will still be charged with DUI under section 11-501(a)(2) of the Illinois Vehicle Code).

They further tell you that, if you refuse to submit to the test, your driving privileges will automatically be suspended for a minimum of 12 months if you are a "first offender" as defined by section 11-501.1 (no prior DUI convictions, court supervisions, or Statutory Summary Suspensions within 5 years of the new arrest), or for a minimum of 3 years if you are not a "first offender" as so defined.

The suspension takes effect on the 46th day following the notice of suspension. If you refuse the test, that refusal can be used at a trial to try and show your "consciousness of guilt". So, it is important to not say anything in conjunction with any such refusal that can bolster that belief, such as "we all know I'd fail", etc.

If you take the breath test, and you are over the 0.08 limit, you will only be suspended for 6 months on the 46th day after the notice of suspension if you are a first offender, or 12 months if you are a non- first offender. However, you will also be charged with a violation of DUI under Section 11-501(a)(1), which basically provides that there is a presumption of guilt for driving/being in actual physical control of an automobile while your BAC was 0.08 or higher. The difference: under Subsection (a)(2), the State must prove beyond a reasonable doubt that your ability to operate an automobile was actually impaired by the consumption of alcohol, whereas under (a)(1) they need to only prove you were "over the legal limit." Clearly, a refusal of a breath test places you in a much better position to defend a Chicago DUI charge than failing a breath test does.

To the first offender: if the extended suspension of 12 months for refusal vs. 6 months for failure seems like it is too much of a hardship for you to experience, and you are tempted to take your chances with the machine, STOP and THINK!

In Illinois, the suspension you will face can be addressed through the installation of a blood alcohol ignition device (BAIID) in any vehicle you might drive (exception for employer vehicles, although the State will waive that requirement when you must drive an employer vehicle in the scope of your job), or through the wearing of an Alcosensor Ankle Bracelet (like Lindsay Lohan).

You must apply for the permit through the Secretary of State, pay the fees, get the device, and then drive. You can drive with the device 24/7, without restrictions, other than the fact that you must maintain sobriety at all times, because the BAIID will require random testing during the drive; the Ankle Bracelet constantly measures any alcohol through your skin pores, and transmits positive results to the monitoring company and the State.

So, for the reasons stated above, including the potential for inaccurate results due to your personal variance in the 2100:1 ratio, and the lack of any real benefit vs. the lack of any significant detriment in the submit vs. refusal choice, it is generally recommended that you politely, with as little comment or argument as possible, refuse any and all chemical testing of your breath during and after a DUI arrest. This will usually give you the greatest chance of success in defense of your DUI.

Speak to our Experienced DUI Legal Team in Chicago

Since 1990, the experienced DUI legal team at Mitchell S. Sexner & Associates LLC has been helping clients charged with Driving Under the Influence charges. Contact us online or call (800) 996-4824 for free information about how we can help you to retain your driving privileges.

Written by Mitchell S. Sexner Last Updated : June 24, 2020