ILLINOIS LAW REQUIRES POLICE TO ASK BEFORE GIVING A PORTABLE BREATHALYZER TEST

Recent Illinois case law has clarified that an officer must ask you to take the portable breathlayzer test (PBT) and give you enough time to refuse before giving the test, or your case could be dismissed.

If you are stopped for DUI, police may ask you to perform certain field tests. An officer may also ask you to take a PBT. The PBT is not admissible into evidence but can be used to determine whether there was probable cause to arrest you for drunk driving.

Before giving the test, the officer must ask you to take it. Illinois requires that you have a reasonable opportunity to refuse the test although the officer need not inform you of your right to refuse. As long as the officer requests the PBT without commanding submission and you are given an opportunity to refuse, the PBT is considered voluntary and complies with state law.

In People v Taylor, the officer essentially placed the PBT device in front of defendant’s mouth without asking the defendant to take the test or giving the defendant enough time to refuse. As a result, the court threw out the arrest stating that the test could not be used to provide probable cause.

If you are charged with DUI or similar offense, contact an experienced attorney immediately. If the police acted improperly, the attorney may be able to petition the court to suppress the arrest. Bear in mind that each case is very fact specific, and judges may disagree on whether you had enough time to refuse a PBT.

If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)