Right to Refuse a Portable Breath Test (PBT)

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Right to Refuse a Portable Breath Test (PBT)

In Illinois, there are two chemical breath tests that may be offered to a person suspected of driving under the influence of alcohol. First, after an officer administers the Standardized Field Sobriety Tests (SFTS), he may request a driver take a Portable Breath Test (PBT) on the side of the road. Second, after a suspect is transported to the police station the officer will offer the suspect an opportunity to submit to a chemical breath test at the police station.

Prior to a PBT, an officer is required to read a suspect the “Warning to Motorist” explaining the consequences of submitting to or refusing the test. As we will see, an officer’s requesting of a motorist to submit to a test and the motorist’s right to refuse to take one are essential in how a case is seen in court.

It is not widely known that the results of a PBT cannot be used in the prosecution of a criminal charge. The results of a PBT may be used to show that the officer had reasonable grounds to ask the suspect to submit to a chemical breath test at the station. The PBT results may also be used to show that the officer had probable cause to arrest the driver for DUI.

The PBT statute provides: “If a law enforcement officer has reasonable suspicion to believe that a person is violating or has violated Section 11–501 or a similar provision of a local ordinance, the officer, prior to an arrest, may request the person to provide a sample of his or her breath for a preliminary breath screening test using a portable device approved by the Department of State Police. The person may refuse the test.”

In the case of State v. Taylor, the defendant was pulled over after an officer witnessed the defendant rolling a few stops signs and making a wide left turn. The officer administered the SFSTs, which the defendant passed. The officer then went back to his squad car and retrieved a Portable Breath Test (PBT) device and told the defendant that he wanted him to blow into it to determine if it was safe for him to get back behind the wheel and drive. The defendant blew over the legal limit and was then arrested for DUI.

However, because the officer did not give the defendant the opportunity to refuse the test, the court found that there was no probable cause for the arrest to take place. Had the officer requested that the defendant take the test with the defendant’s knowledge that he could refuse it, then there would be probable cause. If there is reasonable suspicion, an officer “may request” a PBT, and the suspect “may refuse” it, but it cannot be administered without asking.

In the State v. Taylor, the court found that “in determining that defendant did not consent, the trial court considered in combination [the officer’s] failure to request that defendant take the PBT and his failure to provide an opportunity to refuse. Its findings were not against the manifest weight of the evidence.  Thus, it properly suppressed the PBT results, due to noncompliance with the PBT statute.”

If you are charged with a DUI in the state of Illinois, we strongly encourage you to contact Richard at Fenbert & Associates, LLC so that he can assist you with your case.