Drivers cannot be charged with a crime for refusing to take a breath test in Illinois. However, there are 13 states where drivers can face criminal penalties if they refuse such a test. Some people argue that charging drivers for refusing to submit to a breath test is a violation of their federal constitutional rights.

On Dec. 11, the Supreme Court decided to hear cases from North Dakota and Minnesota that concern the question of whether or not drivers have the right to refuse breath tests. The Supreme Court will decide if drivers can refuse to take a breath test when a police officer does not have a warrant but believes that the motorist was driving drunk.

If the Supreme Court rules that drivers have the right to refuse to take breath tests, tens of thousands of criminal charges could be avoided each year. In one of the cases, the Minnesota Supreme Court ruled in favor of the state, arguing that the breath tests were only demanded after the drivers had been taken into police custody. The Minnesota Supreme Court also found that blood and urine tests were never demanded unless authorities had a warrant.

Even if a driver does not face criminal charges for refusing to take a breath test, prosecutors may view the refusal as evidence that the driver did not want to reveal their blood-alcohol content to authorities. A lawyer may be able to help a driver who is facing drunk driving charges to argue that they had a valid reason for refusing to take a breath test. For example, a driver may not have wanted to take a breath test because they were aware that gastric reflux and other medical conditions could interfere with the results.