Illinois summary suspension for failing or refusing the breathalyzer

by Sami Azhari on June 25, 2012

Illinois Summary Suspension | Cook County

There is something inherently unfair about it law that allows a police officer to suspend a person’s driver’s license for DUI before he is found guilty. But this is the law in Illinois. A police officer can suspend a person’s license for failing or refusing chemical testing.

Illinois courts recognize a concept called implied consent. Basically, anyone who operates a motor vehicle on any road in this state has consented to testing of his blood, breath, or urine. Anyone who fails such testing, or refuses it altogether, will have his license suspended. When the courts see it, if you drive your vehicle on the roadway, you have impliedly consented to this agreement.

The suspension goes into effect after 45 days. And so, on day number 46, the person loses his driving privileges. Illinois courts have said that a motorist is not guaranteed a right to be heard in court about the suspension before it takes effect. This is why it is called a summary suspension. Is summary because it goes into effect almost immediately, and it is not a violation of due process to give the driver a hearing after the suspension has gone into effect.

The length of the summary suspension is determined by two issues. First, whether the driver has a prior DUI or summary suspension in the last 5 years. And second, whether the driver failed or refused chemical testing.

For a driver who has no prior DUIs or suspension in the last 5 years, the following rules apply.

If he submits to and fails chemical testing, his license will be suspended for 6 months. However, if he refuses to submit to chemical testing, the his license will be suspended for 12 months.

Compare that situation to where the driver has a prior DUI within the last 5 years, or has been suspended within the last 5 years. In this case, the penalties are more severe.

If he submits to and fails chemical testing, his license suspended for 12 months. But if a driver who has a prior DUI or summary suspension within the last 5 years refuses to submit to chemical testing, his license will be suspended for 36 months.

The distinction concerning no prior DUIs or summary suspensions in the past 5 years concerns the concept of a first offender. The term first offender causes confusion because it does to really describe a person on his or her first DUI.

First offender, rather, is a term that applies to someone with no prior DUIs or summary suspension the last 5 years. The only thing that the first offender does is determine whether the suspension is for longer.

The next important issue is what it means to fail chemical testing, and what it means to refuse.

A person fails chemical testing when he has an alcohol concentration of 0.08 or more, or any amount of cannabis, a controlled substance, or methamphetamine in his system.

A person refuses chemical testing when he says no and does not submit to it, or says nothing and fails to complete the test.

The law has a procedure in which a person who is suspended may object. A person who is suspended pursuant to a summary suspension has the right to file a petition to rescind in court. Once this request for hearing is filed, a person is entitled to a hearing within 30 days. If the court fails to give that person a hearing within 30 days, he automatically wins is license.

The person may also win reinstatement by showing there was no probable cause for the arrest, the officer not have reasonable grounds to ask for chemical testing, the driver was not properly warned about the impending suspension, or, contrary to the police officer’s contention, he did not fail such test.

Summary suspension hearings are governed by the rules of civil procedure, and should only be undertaken by an attorney.

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