Can I Be Forced to Take a Portable Breath Test?

Brandon K. Davis

A Portable Breath Test (PBT) is commonly used by police officers in the field to establish probable cause to arrest a driver for DUI. Recent Illinois caselaw says that a driver must have a choice to take or refuse a PBT. The driver must provide some form of consent prior to taking a PBT. Although the officer is not required to inform the driver that he or she may refuse the breath test, the driver must have a reasonable opportunity to do so.

In People v. Taylor (2016 IL App (2d) 150634), the defendant was given less than 2 seconds after being told “what I want you to do is take a deep breath and blow…” to question what he was being told by the officer before the officer placed the device at a minimum within 1-2 inches of the driver’s mouth. In fact, the officer testified that he placed the stem of the device directly in the driver’s mouth. The Court found that this did not present the driver with a reasonable opportunity to refuse the test. As a result, the court suppressed the result of the PBT based on noncompliance with the PBT statute.

While a portable breath test may be used to establish probable cause, a PBT result is not admissible evidence at trial. It should be noted that additional procedures must be followed for the use of an evidentiary breath test offered at the police station, which may be admissible at trial.

Posted in: DUI

Client Reviews

I wanted to let you know that I finally got my license back today. I want to thank you guys from the bottom of my heart. You did an amazing job and helped another person...

M.M.

I want to extend my sincere gratitude for the success in getting my charges reduced. It has been a rather traumatic experience for me. Though I try to keep an optimistic...

D.F.

I would like to take this time to thank you for a job well done. I received my full reinstatement documents today for full driving privileges. This took me by surprise. I...

G.B.

My special thanks for your help, guidance, and support during a most difficult time. You came recommended as "the best" and you lived up to your reputation! I wish you a...

S.S.

I am very grateful for your work and representation. Although it is difficult for me to truly express my gratitude through e-mail, I hope you can still understand how...

D.K.

Contact Us

Fill out the contact form or call us at (847) 390-8500 to schedule your free consultation.
  • cf-icon-01.png Free Consultation
  • cf-icon-02.png Available 24/7
  • cf-icon-03.png Se Habla Español

Free Consultation (847) 390-8500

We respect your Privacy. Submitting this form does not create an attorney-client relationship. Confidential information should not be sent through this form.