If I get pulled over for DUI, should I take the breathalyzer?

To say you have to make a decision whether to take the breathalyzer test during a DUI arrest is misleading.

It's misleading because making a "decision" implies you actually have control over what's going to happen. In a DUI arrest, nothing is under your control.

You may have been driving fine, but the cop pulled you over anyway.

You passed the field sobriety tests, but the cop arrested you anyway.

You may be innocent, but you're going to be found guilty anyway.

Welcome to the big business that is Illinois DUI enforcement. Police departments across the state have a financial incentive to make DUI arrests.

Small towns and big cities across the state make money from DUIs. The police department gets paid. The tow company gets paid. And so on.

Who is going to argue against this? Politicians aren't stumping on the campaign trail AGAINST arresting drunk drivers. No one wants a reputation of being soft on drunk driving. And so the laws against DUI in Illinois get more severe and punitive every year. Innocent people, like you, may have to pay the price.

Which leads us back to you, looking at flashing lights and wondering:

Is it better to refuse the breath test or blow?

The answer is, it depends. (Truth be told, there is a definitive answer, but that's for later.)

Let's look at the rules first. On a first DUI, the penalties for the breathalyzer are as follows:

• For refusing, your license will be suspended for 12 months.
• If you blow into the breathalyzer and the result is 0.08 or more, then your license is suspended for 6 months.

The legislature drafted the law so that you may want to blow to avoid the more serious suspension of your driver's license. But in blowing into the breathalyzer, you are providing evidence that can be used to prove you guilty of DUI. The offense of DUI is a Class A misdemeanor for which the sentence can be up to one year in jail and a fine of $2,500.00. Moreover, a sentence of conviction will cause the Secretary of State to revoke your driver's license.

It's a tough choice. This dilemma is made more complicated when it's your second DUI offense. In that case, the rules are the following:

• If you blow 0.08 or more, then your license is suspended for one year.
• But if you refuse the breathalyzer, then you license is suspended for three years.

Confused yet? The answer is coming. But before we get to that...

There is one consideration that may cause some people to decide it is actually better to provide a breath sample on the second DUI. On the second offense, the defendant is not eligible for supervision, which is the typical sentence handed out in traffic court for moving violations. Supervision is not a conviction and does not cause the Secretary of State to revoke your driver's license. This sentence of supervision is key in a first DUI offense because it will save your license.

On the second offense, no one can get supervision. That means the minimum sentence is a conviction, which results in a revoked license.

But the revocation lasts for one year. Immediately afterward, the driver can apply to the Secretary of State for reinstatement. A driver who is serving a three-year summary suspension, on the other hand, has to wait an additional two years to drive again legally.

Some may say, first or second DUI arrest, it is better to blow and avoid the longer driver's license suspension.

But not this lawyer.

There is a guiding principle that says, all other things being equal, it is better to refuse the breathalyzer.

There are TWO breathalyzer tests. One matters, but the other doesn't.

You can refuse one test and lose your driver's license, but refusing the other has no consequences.

The first test is the portable breath test, known as the PBT. The PBT is a hand-held device that the police officer uses during the roadside testing for a preliminary reading of a driver's blood alcohol content.

There is no penalty for refusing this test, or blowing 0.08 or more. The result is inadmissible in trial for a DUI offense. The result could be 0.08 or even 0.24, but it cannot be used against you in the criminal prosecution. Likewise, it cannot be used against you to suspend your driver's license. The PBT has no consequences.

The second test is the breathalyzer machine in the police station. This is a different scenario. The breathalyzer machine is typically located in the station's booking room on a table. It is a large, stationary instrument about the size of a desktop computer like an Intoxilyzer. This is the only test that will result in a suspension of your driver's license.

So the general rule is, take your chances on the PBT. It's irrelevant. It doesn't matter.

If you're under 0.08, arguably the police officer has to let you go. If the cop arrests you anyway and you are SURE that your blood alcohol content will be lower in the police station, you may decide to take a calculated risk and blow into the breathalyzer at the station. If your gamble was right and the result is less than 0.08, you may have just proven your innocence. But remember, this is a gigantic gamble.

If you blow over the legal limit on the PBT, don't beat yourself up over the decision to take the PBT. Realistically, the police officer had already decided to arrest you. The PBT was just his or her way of trying to make the best case for probable cause.

But when you get to the station, that breath test is a different story, with much greater consequences.

If you know you already blew over 0.08, then the "decision" whether to take the breath test is much simpler.

Lewis Gainor, the author of this blog, is an attorney in Chicago who dedicates his practice to Illinois DUI law. If you are facing DUI charges, you need an attorney who concentrates in the area. Call Lewis Gainor right now for a free consultation: (224) 688-9118. Click here to read more from him on the subject of breathalyzers.