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Challenging Your DUI Arrest – the PBT

The preliminary breath test is a very useful tool which law enforcement uses to support your arrest for DUI. While it is not used at the trial of the criminal portion of your case, it is always used to support the officer’s reasonable belief that you were driving while intoxicated. That is important to your petition to rescind the summary suspension of your driving license (getting your license back after the DUI arrest) and motions to suppress or quash your arrest (to get your cased dismissed before it even goes to trial).

What many unwary drivers do not know is that you have an absolute statutory right to refuse to take the PBT. Not only that, but the Illinois statute governing the use of the PBT requires that officer must request that you take the test, and you can refuse. The statute reads as follows: “ 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.”

The statute obviously requires consent by the driver. Recent case law provides support for excluding the PBT result from important pre-trial hearings where the officer’s words or conduct impair the voluntary consent of the driver.

In People v Taylor, a 2016 case out of the 2nd District, the officer did not ask the driver if he would submit to a PBT, but held the PBT up to the driver’s mouth and told him to take a deep breath and blow into the PBT. The court excluded the PBT result from evidence on the driver’s motion to quash his arrest.

The court based its ruling on the right against unreasonable searches and seizures provided by the fourth amendment to the United States Constitution. The court held that the “request” and “refuse” part of the statute, if followed, made the taking of the PBT voluntary, and consent satisfies the fourth amendment. In other words, you can’t claim your right against unreasonable searches and seizures are violated while you consent, and sit, not stand, on your rights.

The court also held that the officer does not have to tell the driver that he has the right to refuse, but must give the driver a reasonable opportunity to refuse. Where the officer held the PBT up to the driver’s mouth and told him to blow, and said he wanted him to take the PBT (suggesting a command, not a request), and gave him only 2 seconds to consider whether the was required or could refuse, the “request” and “refuse” part of the statute was violated and the PBT was excluded. Because the other field sobriety tests were also inaccurately administered, his arrest was quashed for lack of probable cause.

This case should provide the basis for excluding the PBT based only on the conduct during the PBT segment of the DUI investigation. In other words, the agreement of the driver to perform field sobriety tests should not obviate the need for consent to the PBT.

The court relied heavily on the police car video for finding the facts in this case. A person accused of DUI should seek out the assistance of seasoned, experienced, and aggressive DUI attorneys to acquire all the relevant evidence, analyze it and use it to try to get a driver’s license back and quash his or her arrest.  You can reach Gullberg, Box and Worby at 309 734-1001.  We meet with clients at our offices in Monmouth and Peoria, Illinois and Bettendorf, Iowa.