Defendant was arrested for DUI with BAC of 0.08 or more. Court suppressed Defendant's (Portable Breath Test) (PBT) results. The PBT statute requires a suspect's consent prior to administering a PBT, and Defendant did not so consent. The "request" and "refuse" elements of PBT statute require some form of consent or choice, implicit in statutory language, before a PBT may be administered. Although officer is not obligated to inform suspect that he or she may refuse, it does require that suspect have a reasonable opportunity to refuse. Officer did not present Defendant with a choice to take or refuse PBT, and thus officer affected Defendant's opportunity to refuse PBT. Court's finding that officer lacked probable cause to arrest Defendant for DUI was not against manifest weight of evidence. Court reasonably discounted reliability of HGN and walk-and-turn tests, as both tests were administered against protocol.(BURKE and BIRKETT, concurring.)
Illinois Appellate Court
Criminal Court
DUI