Can I Be Forced to Take a Portable Breath Test?

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.

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