Forced PBT leads to suppression of DUI evidence and DUI reversal.

Facts

Defendant parks his car to ask the officer following him for directions.

The officer conducts FSTS, but he munks them all up.

FST Results

The trial judge said that in light of the instructional errors, defendant’s performance was “satisfactory,” he had “no difficulties performing the tests, no problems with swaying or balance or other issues as to that.”

The trial court found that defendant did not consent to the PBT and therefore it was suppressed.

The officer never asks the defendant if he would take test, instead he essentially just jams the thing in his mouth.

Issue

The creates the question the state wanted the reviewing court to answer on appeal: Does a PBT have to be consensual or can it be forced?

The Statute

625 ILCS 5/11-501.5(a) says that if there is reasonable suspicion, an officer “may request” a PBT, and the suspect “may refuse.”

The Interpretation

The “request” and “refuse” elements of the PBT statute together the statutory use of the phrase “may refuse” denotes a choice, and the phrase would have no meaning if it did not signal that the suspect had the choice to take, or to refuse, the “requested” PBT. Thus, some level of consent or choice is implicit in the statutory language.

Clearly, this has to mean that per the PBT statute an officer cannot command a suspect to take the PBT and that a suspect will not be penalized for refusing the PBT.

Big Picture

Indeed, the purpose of the PBT is to aid in determining probable cause; the PBT results may be used by the State only to establish that the arresting officer had probable cause to arrest, not as evidence at a DUI trial.

In the absence of probable cause, the statute affords protection against unreasonable searches by requiring the request-and-refuse protocol to be conducted under reasonable suspicion.

The court read this protocol as requiring some form of consent before a PBT may be administered.

This is an important distinction between PBT and normal breathalyzer procedures. 

What About Informed Consent?

The police do not necessarily have to inform the driver that he has the option of refusal.

The legislature’s purposeful decision not to require an officer to inform a suspect of his or her right to refuse evidenced the legislature’s intent that the officer need not obtain “informed consent” prior to administering the PBT.

Granted the consent does not need to be “informed consent”.

The Rule

So to sum it all up: the “may refuse” language does not oblige an officer to inform a suspect that he or she may refuse, but it does require that the suspect have a reasonable opportunity to refuse.

Where a suspect voluntarily submits to the PBT upon request, the statute’s request-and-refuse requirements have been met. In other words, so long as the officer requests the PBT without commanding submission, and so long as the suspect is given an opportunity to refuse, the PBT is voluntary.

The PBT does not become involuntary because the suspect is not told that he or she may refuse or because the suspect ultimately was motivated by collateral pressures. Where an officer “requests” that a suspect take the PBT, the suspect is presented with the choice as to whether to take or refuse the PBT (even if the suspect is not informed of the consequences of taking or refusing the PBT).

Holding

Here, the officer did not present that choice, and thus he affected defendant’s opportunity to refuse the PBT.