2016 IL App (2d) 150634
No. 2-15-0634
Opinion filed July 20, 2016
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of De Kalb County.
)
Plaintiff-Appellant, )
)
v. ) No. 14-DT-247
)
AARON TAYLOR, ) Honorable
) Robert P. Pilmer,
Defendant-Appellee. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE JORGENSEN delivered the judgment of the court, with opinion.
Justices Burke and Birkett concurred in the judgment and opinion.
OPINION
¶1 Defendant, Aaron Taylor, was arrested for driving under the influence (DUI) with a
blood alcohol concentration (BAC) of 0.08 or more. 625 ILCS 5/11-501(a)(1) (West 2014). The
trial court suppressed defendant’s portable breath test (PBT) results. The court explained that
section 11-501.5(a) of the Illinois Vehicle Code (PBT statute) requires an officer, acting under
reasonable suspicion, to “request” a suspect to submit to a PBT, and that the officer here, Paul
Delisio, did not so request. 625 ILCS 5/11-501.5(a) (West 2014). Additionally, the court, citing
People v. Rozela, 345 Ill. App. 3d 217, 224 (2003), explained that the PBT statute requires a
suspect’s consent prior to administering a PBT, and that defendant here did not so consent. 625
2016 IL App (2d) 150634
ILCS 5/11-501.5(a) (West 2014). The court then quashed the arrest, stating that, absent the PBT
results, there was not probable cause to arrest defendant for DUI.
¶2 The State raises two issues. First, it challenges the trial court’s suppression of the PBT
results, arguing that the trial court should not have relied on Rozela for the proposition that the
PBT statute requires consent. The State contends that, per People v. Gutierrez, 2015 IL App (3d)
140194, ¶ 20, which was released after the court’s ruling in the instant case, Rozela is no longer
good law. We disagree, and determine that Rozela is still good law, though we take the
opportunity to clarify its use of the word consent. Thus, we hold that the court did not err in
suppressing the PBT results.
¶3 Alternatively, the State argues that, even absent the PBT results, there was probable cause
to arrest for DUI. The State likens this case to People v. Rush, 319 Ill. App. 3d 34 (2001), where
the appellate court reversed the trial court’s finding of no probable cause. We find Rush
distinguishable, and we reject the State’s probable-cause argument.
¶4 I. BACKGROUND
¶5 The record contains transcripts of both the hearing on defendant’s petition to rescind the
summary suspension of his license and the hearing on defendant’s motion to suppress evidence
and quash his arrest. The squad car video was submitted at both hearings. The transcripts of the
hearing on the petition to rescind were accepted at the hearing on the motion to suppress
evidence and quash the arrest. This appeal concerns the trial court’s ruling on the motion to
suppress evidence and quash the arrest.
¶6 A. Defendant’s Driving
¶7 The squad car video began recording at 2:55 a.m. Delisio turned onto the road on which
defendant was driving and began to follow defendant. Defendant, age 28, had just rolled through
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a three-way stop sign or light. 1 Delisio followed defendant, down the straight road, for one
minute. Defendant approached a stoplight, which was red. Defendant turned right after slowing
down to a roll. About 40 seconds later, defendant approached another stoplight. Defendant
turned left. The light was green, though it turned to yellow before defendant was through the
turn. Delisio can be heard on the video saying, “wide turn.” Delisio testified, however, that the
turn was not uncommonly wide and that defendant did not overcorrect for the turn. Less than
one minute later, defendant signaled and moved into the right lane. Defendant passed a stop
sign, with a slight roll. He signaled and turned right. As defendant passed a parked car,
defendant slowed down from 28 to 21 miles per hour in a 30-mile-per-hour zone.
Approximately 10 seconds after reaching the low speed of 21 miles per hour, defendant signaled
and pulled to the side of the road. Delisio pulled up behind defendant but did not activate his
squad lights. Defendant then put on his flashers and waited in his truck for about 30 seconds.
Delisio remained in his squad car. Defendant exited his truck, approached Delisio, and gave a
slight hand wave. At this point, Delisio treated the interaction as a “motorist assist.”
¶8 Delisio asked defendant, “What’s the problem?” Defendant answered that he was trying
to find Chicago Road. He explained that it was his first time in the area and he was driving his
friend home from a birthday celebration: “I just want to get my friend home safely.” (The friend
remained in the truck for the entire encounter.)
¶9 Delisio asked defendant if he had been drinking. (Delisio testified that defendant smelled
of alcohol and had glassy and dilated eyes.) Defendant stated that he had had three or four beers,
1
The event that prompted Delisio to follow defendant is not captured on the video. There
is much confusion in the testimony and in the briefs as to whether defendant failed to stop at a
sign or a light. Either way, Delisio chose to follow defendant rather than detain him.
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beginning around 6:30 p.m. He had not had anything to drink in the last 30 minutes. Delisio
asked defendant to get his insurance card. Defendant cooperated. Delisio told defendant to get
back into his truck, and, instead, defendant started to get into Delisio’s squad car. Delisio asked
defendant to participate in field sobriety tests. He told defendant that the purpose of the tests was
to determine whether defendant could continue to drive home.
¶ 10 B. HGN Test
¶ 11 Delisio testified that the Horizontal Gaze Nystagmus (HGN) test indicated that defendant
had been drinking. According to Delisio, defendant leaned forward during the test. However,
Delisio admitted that he did not administer the test correctly, in that he conducted the test near
the flashing lights of defendant’s truck. Delisio also admitted that he had not received training
on the HGN test since 1999 and was not certain whether the speed at which he moved the light
was in keeping with the current standards.
¶ 12 C. Walk-and-Turn Test
¶ 13 Delisio told defendant to hold the heel-to-toe position while he gave the instructions.
After Delisio gave the instructions, he asked, “Do you understand all that?” Defendant stated
that he did and reverted to a relaxed pose. Delisio then told defendant to begin the test: “Alright,
whenever you are ready.” Defendant then resumed the heel-to-toe position and began the test.
¶ 14 Delisio testified that he deducted points when defendant reverted to the relaxed position.
Delisio acknowledged that he never told defendant, as current standards required, that defendant
must hold the position through the instructions and go straight into the test without taking a
break. Delisio further admitted that his police report was incorrect where he checked a box
indicating that defendant “lost his balance” during the instructions. Defendant did not lose his
balance; defendant merely reverted to the relaxed pose.
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¶ 15 After the walk-and-turn test, defendant said, “Officer, I’m not looking to cause any
trouble.” Delisio said, “Oh, I know, but I gotta make sure you are okay to drive.” Defendant
offered to call his parents, stating that they would be “more than happy” to pick him up. Delisio
nodded and said, “Okay, well…” and did not finish the sentence. Defendant tried again, this
time stating, “I’m probably borderline. I’m not going to lie.” He stated that he did not want to
be “in this position,” and he again asked to call his parents. Delisio responded that he would
continue with the field tests and that “maybe” defendant would not have to call his parents.
¶ 16 D. One-Legged-Stand Test
¶ 17 About halfway through the 30-second one-legged-stand test, defendant lost his balance.
He swayed, hopped slightly, and raised his hands several inches, but he did not put down his
foot. Delisio deducted a point for each of these motions, though the motions occurred as part of
a single loss of balance. Delisio admitted that flashing lights can affect a person’s balance and
that he administered the test near the flashing lights of defendant’s truck.
¶ 18 E. PBT Test
¶ 19 At 3:10 a.m., Delisio retreated to his squad car to obtain the PBT device. He told
defendant to wait, but he did not tell defendant that a PBT test would be forthcoming. As
defendant waited, a loud train could be heard. At 3:10:38, Delisio reappeared on the video and
approached defendant. At 3:10:41, Delisio held the PBT device within inches of defendant’s
chest. With the train still passing, Delisio stated: “What I want you to do is take a deep breath
and blow in here like you’re blowing up a balloon, okay?” He finished that sentence at 3:10:45.
It is not clear from the video’s head-on angle whether Delisio had already placed the PBT device
in defendant’s mouth at 3:10:45. The PBT device was, at a minimum, within one or two inches
of defendant’s mouth. It is clear from the video that the PBT device was in defendant’s mouth
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by 3:10:47, because defendant exhaled; he was blowing. Additionally, between 3:10:49 and
3:10:53, Delisio said, “keep going, keep going.” Delisio read the PBT results, and, at 3:11:19, he
arrested defendant for DUI.
¶ 20 Delisio testified at the hearing on the petition to rescind that he “didn’t ask” defendant to
take the PBT but that “it was all voluntary.” Delisio stated that he stuck the stem of the PBT
device into defendant’s mouth and that defendant acquiesced in this action.
¶ 21 F. Trial Court’s Ruling
¶ 22 The trial court suppressed the PBT results, explaining that it did not believe that Delisio
complied with the PBT statute:
“[G]oing back to the testimony [at the hearing on the petition to rescind], the
deputy indicated, ‘I didn’t ask him. It’s voluntary,’ and it’s clear from the conversation
that did occur and what was observed on the squad video that there was not a request to
take the test and that [under] People v. Rozela *** it appears *** that under the
circumstances I don’t believe the driver consented. When you look at the totality of all
the circumstances, what occurred, what was said and how it transpired the driver was not
requested to provide a sample for the preliminary breath screening test on the portable
device.”
¶ 23 Without the PBT results, the trial court found no probable cause to arrest for DUI. It
noted that Delisio’s testimony was inconsistent. At the hearing on the petition to rescind, Delisio
spoke of defendant’s strong odor of alcohol. However, at the hearing on the motion to suppress
evidence and quash the arrest, Delisio stated that he noticed “nothing unusual” about defendant
as defendant got into the squad car.
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¶ 24 As to defendant’s driving, the court noted that Delisio followed defendant through
several turns and stops, some of which defendant rolled through. Defendant drove below the
speed limit the entire time. Then, defendant pulled over to the side of the road, signaling and
turning on his flashers. Delisio parked behind him but did not turn on his squad lights.
Defendant walked toward Delisio to ask directions. Defendant’s slow speed was not concerning;
it was “somewhat consistent” with defendant’s initial statement that he was not familiar with the
area. Delisio initially treated the interaction as a motorist assist.
¶ 25 As to defendant’s actions prior to the field tests, the trial court stated: “there’s no
observation of any problems with the driver’s ability to get out of the truck or to walk.”
Defendant conversed without slurring or mumbling. Defendant followed directions to go back to
the truck to get his insurance card. Again, he had no trouble walking between the vehicles and
entering and exiting his truck. Upon retrieving the insurance card, defendant started to get into
the squad car, against Delisio’s directions to get into the truck. However, the trial court twice
clarified that it was not convinced that defendant heard Delisio’s directions: “but again, there’s
no indication as to what was heard.”
¶ 26 As to the HGN test, the trial court discounted Delisio’s testimony that defendant leaned
forward during the test. The court stated: “That’s not observable *** not even slowly leaning
forward or slightly leaning forward. It’s just not observable there.” The court also questioned
the relevance of the HGN test to defendant, who had already admitted to drinking some amount
of alcohol.
¶ 27 As to the walk-and-turn test, the trial court noted confusion over the instructions. Delisio
admitted that he gave improper instructions. Delisio should not have deducted points where
defendant’s failings were due to poor instructions. In light of the instructional errors,
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defendant’s performance was “satisfactory,” with “no difficulties performing the test, no
problems with swaying or balance or other issues as to that.”
¶ 28 As to the one-legged-stand test, the trial court agreed with Delisio that defendant faltered.
The court characterized defendant’s movement as “a hop and a slight sway.”
¶ 29 The trial court acknowledged that Delisio had been forthright in admitting that he
improperly administered the HGN test and the walk-and-turn test. However, the court
concluded, “if there’s mistakes in the instructions and mistakes in the administration of the tests,
then they’re not sufficiently reliable to make that informed decision as to whether or not to arrest
defendant.”
¶ 30 Thus, the trial court granted the motion to suppress evidence and quash the arrest. This
appeal followed.
¶ 31 II. ANALYSIS
¶ 32 The State argues that the court misunderstood the requirements of the PBT statute and
that this caused it to err in suppressing the PBT results. Alternatively, the State argues that, even
without the PBT results, Delisio had probable cause to arrest for DUI. We review in two parts a
motion to suppress evidence and quash an arrest based on an alleged lack of probable cause.
People v. Grant, 2013 IL 112734, ¶ 12. First, we review the trial court’s factual determinations
under the manifest-weight standard. Id. Then, we review de novo the ultimate ruling on the
motion. Id.
¶ 33 A. Suppression of the PBT Results
¶ 34 The State challenges the trial court’s interpretation of the PBT statute. The court stated
that the PBT statute requires an officer to request a PBT and that it requires a suspect’s consent
prior to administering the PBT. In ruling, the court cited Rozela, 345 Ill. App. 3d at 224, which
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states, “[the PBT statute] permits an officer to conduct a PBT only if: (1) the officer has
reasonable suspicion that the suspect has committed DUI and (2) the suspect consents to the
test.” The State, citing Gutierrez, 2015 IL App (3d) 140194, asserts that the PBT statute does
not require a suspect’s consent. The State asks us to interpret the PBT statute and determine its
requirements, considering Rozela and Gutierrez.
¶ 35 Our review of the requirements of the PBT statute is de novo. See People v. Jones, 214
Ill. 2d 187, 193 (2005). “The primary objective of statutory interpretation is to determine and
give effect to the legislature’s intent.” Id. We first look to the language of the statute at issue.
Id. “The statute should be read as a whole and construed so that no part of it is rendered
meaningless or superfluous.” Id. Where the legislature’s intent is not clear from the statute’s
plain language, the court may turn to legislative history. Id. The PBT statute provides:
“If a law enforcement officer has reasonable suspicion to believe that a person is
violating or has violated Section 11-501 or a similar provision of a local ordinance, 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 results of this
preliminary breath screening test may be used by the law enforcement officer for the
purpose of assisting with the determination of whether to require a chemical test as
authorized under Sections 11-501.1 and 11-501.2, and the appropriate type of test to
request. Any chemical test authorized under Sections 11-501.1 and 11-501.2 may be
requested by the officer regardless of the result of the preliminary breath screening test, if
probable cause for an arrest exists. The result of a preliminary breath screening test may
be used by the defendant as evidence in any administrative or court proceeding involving
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a violation of Section 11-501 or 11-501.1.” (Emphases added.) 625 ILCS 5/11-501.5(a)
(West 2014).
¶ 36 The statutory language directs that, if there is reasonable suspicion, an officer “may
request” a PBT, and the suspect “may refuse.” Id. The relevant dictionary definition of
“request” is “the act or an instance of asking for something.” Merriam-Webster Dictionary,
http://www.merriam-webster.com/dictionary/request (last visited June 2, 2016) (listed in the “full
definition”). The relevant dictionary definition of “refuse” is “to show or express unwillingness
to do or comply with.” Merriam-Webster Dictionary, http://www.merriam
webster.com/dictionary/refuse (last visited June 2, 2016) (listed in the “full definition”). The
relevant dictionary definitions of “may” are “have permission to,” “be free to,” and “ability to.”
Merriam-Webster Dictionary, http://www.merriam-webster.com/dictionary/may (last visited
June 22, 2016) (the last of which is denoted by the source as archaic). The “request” and
“refuse” elements of the PBT statute together describe the protocol the officer must follow prior
to administering the test. 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, as we detail below, the request and refuse elements indicate
that some level of consent or choice is implicit in the statutory language. 2
2
The word “consent” has special meaning within fourth-amendment law. Consent, as
typically referenced in fourth-amendment cases, can serve as a stand-alone basis to satisfy the
fourth amendment’s requirement that all searches be reasonable. Here, however, when we say
that the PBT statute requires some form of consent, we do not mean that the “may request” and
“may refuse” protocol is alone sufficient to establish the reasonableness of the PBT search.
Rather, as the statute expressly states, there must also be reasonable suspicion.
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¶ 37 In Rozela, the defendant argued that the PBT statute was unconstitutional in that it
allowed for a PBT to be conducted in the absence of probable cause. This court rejected the
defendant’s argument. Rozela, 345 Ill. App. 3d at 225. The PBT statute did not violate a
suspect’s fourth-amendment right against unreasonable searches and seizures, because the PBT
statute’s “request” and “refuse” format provided for consent as a valid basis for the search. Id.
Rozela did not discuss what hypothetical circumstances might satisfy the PBT statute’s consent
requirement. As was proper, it addressed only the circumstances presented, specifically, that the
officer “asked” and the defendant “complied.” Id. at 221, 225. Thus, the defendant’s argument
that the PBT statute was unconstitutional for failure to require probable cause failed.
¶ 38 Gutierrez involved a highly unusual fact pattern, wherein the defendant was a police
officer who had been in a traffic accident and was asked by a supervisor to return to the scene.
Gutierrez, 2015 IL App (3d) 140194, ¶ 5. The defendant was asked to submit to a PBT, in the
context of facing potential discipline should he refuse. Id. ¶¶ 5-8. After two device reading
failures, the administering officer was able to successfully obtain a reading. Id. ¶ 8. There was
no question that the administering officer requested the test and the defendant was given the
opportunity to refuse. Rather, the defendant argued that the PBT statute required his “informed
consent” 3 before he submitted to the PBT, particularly where he faced the collateral pressure of
potential discipline. Id. ¶ 18.
3
The Gutierrez court interchanged the terms “informed consent” and “affirmative
consent.” However, it is clear from the context of the Gutierrez analysis that Gutierrez’s key
ruling was that the PBT statute does not require “informed consent.” Thus, in discussing
Gutierrez, we use only the term “informed consent.”
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¶ 39 The Gutierrez court rejected the defendant’s argument. It stated that the “request” and
“refuse” elements of the PBT statute simply mean that an officer cannot command a suspect to
take the PBT and that a suspect will not be penalized for refusing the PBT. Id. ¶ 20. It further
stated that the suspect has “a right to refuse the PBT” and that a suspect must have the “ability to
refuse” the PBT. Id. ¶¶ 21-22. However, it determined that the officer is not required to inform
the suspect of his or her right or ability to refuse the PBT. Id. ¶ 21. Whether an officer is
required to inform the suspect that he or she may refuse had been discussed and firmly rejected
during the debate on the bill. Id. (citing 91st Ill. Gen. Assem., Senate Proceedings, Feb. 25,
2000, at 62). Thus, the court concluded, the legislature’s purposeful decision not to require an
officer to inform a suspect of his or her right to refuse evinced the legislature’s intent that the
officer need not obtain “informed consent” prior to administering the PBT. Id.
¶ 40 Our agreement with Gutierrez is limited. We agree with its holding that the PBT statute
does not require a suspect’s informed consent. However, in reaching that holding, Gutierrez
misread, and, thus, unnecessarily rejected, Rozela. The flaw in Gutierrez is that it seized upon
Rozela’s use of the word “consent” and elevated it to “informed consent.” Then, finding that the
statute does not require informed consent, Gutierrez rejected Rozela. However, as discussed,
Rozela never held that the PBT statute requires “informed consent.” Rather, Rozela held that the
PBT may be conducted on less than probable cause, i.e., reasonable suspicion, where the request-
and-refuse protocol has been satisfied. Rozela, 345 Ill. App. 3d at 225. 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.
Id. at 227. 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
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suspicion. Id. at 225. We read this protocol as requiring some form of consent before a PBT
may be administered. Id. Thus, per Rozela, the PBT statute passes constitutional muster. Id.
¶ 41 Read together, Rozela and Gutierrez provide guidance as to what circumstances can
satisfy the PBT statute’s consent requirement. In Rozela, the officer “asked” the defendant to
submit to the PBT, and the defendant “complied.” Id. at 221. “There was no evidence that [the]
defendant’s submission to the test was involuntary.” Id. In Gutierrez, even though the defendant
faced collateral, disciplinary pressure to consent to the test, he had an opportunity to refuse and
he chose not to avail himself of that opportunity. Gutierrez, 2015 IL App (1st) 140194, ¶ 22.
We know that the defendant in Gutierrez had a period of time to refuse the PBT, because, after
arriving at the scene and being asked to take the test, he had a conversation with another officer
regarding his disciplinary status. Further, the test registered two unsuccessful readings before
the third test registered a successful reading. Id. ¶ 8.
¶ 42 Thus, from Rozela and Gutierrez, we learn that 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.
¶ 43 In this case, the trial court found that Delisio did not request that defendant take the PBT.
It considered this fact when it determined that defendant did not consent as required under the
PBT statute. Again, it stated:
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“[G]oing back to the testimony [at the hearing on the petition to rescind], the
deputy indicated, ‘I didn’t ask him. It’s voluntary,’ and it’s clear from the conversation
that did occur and what was observed on the squad video that there was not a request to
take the test and that [under] People v. Rozela ***, it appears *** that under the
circumstances I don’t believe the driver consented. When you look at the totality of all
the circumstances, what occurred, what was said and how it transpired the driver was not
requested to provide a sample for the preliminary breath screening test on the portable
device.”
¶ 44 The trial court’s finding that Delisio did not “request” that defendant take the PBT is
supported by the evidence. Delisio testified that he did not request that defendant take the PBT:
“I didn’t ask him.” Delisio told defendant: “What I want you to do is take a deep breath and
blow in here like you’re blowing up a balloon, okay?” The court reasonably interpreted the
question—“okay?”—as asking defendant whether he understood the instructions, not as a request
to take the test. Further, Delisio told defendant that he “want[ed]” defendant to submit to the
PBT. This made it less likely that defendant would understand the instruction as a choice rather
than a command. In contrast, 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). Here, Delisio did not
present that choice, and thus he affected defendant’s opportunity to refuse the PBT.
¶ 45 The trial court’s finding that defendant did not have an opportunity to refuse the PBT is
also supported by the evidence. Defendant had less than two seconds, from 3:10:45, when
Delisio finished the instruction, to 3:10:47, when defendant could be seen exhaling, to question
whether the instruction could be a choice rather than a command. During that time, defendant
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was surrounded by physical distractions, such as flashing lights, a loud train, and a PBT device
held close to his face. The video shows that Delisio held the PBT device within inches of, if not
directly against, defendant’s mouth as he finished the instruction. Delisio placed the PBT device
so close to defendant’s mouth that defendant would have had difficulty refusing with mere
words; defendant would have had to physically respond by turning his head, stepping backward,
or placing his hand in front of his mouth in order to effectively communicate a refusal. Although
a suspect may issue a nonverbal refusal, placing a suspect in a position where he must do so in
order to effectively communicate with the officer is a factor that weighs heavily against the
voluntariness of the search. An officer may not place the PBT device into a suspect’s mouth
without giving the suspect an opportunity to refuse.
¶ 46 In sum, we determine that, per Rozela, the PBT statute does require the suspect’s consent,
or choice, to take or to refuse to the test. The statute does not require informed consent. Here, in
determining that defendant did not consent, the trial court considered in combination Delisio’s
failure to request that defendant take the PBT and his failure to provide an opportunity to refuse.
Its findings were not against the manifest weight of the evidence. Thus, it properly suppressed
the PBT results, due to noncompliance with the PBT statute.
¶ 47 Our above rationale is dispositive of the PBT issue. We need not address the remainder
of the State’s PBT arguments. In any case, many of the remaining cases cited by the State
pertain to postarrest procedure and are, therefore, inapplicable to the PBT procedure conducted
by an officer with reasonable suspicion and in furtherance of obtaining probable cause. See, e.g.,
Jones, 214 Ill. 2d at 189 (postarrest procedure); People v. Kavanaugh, 362 Ill. App. 3d 690, 697
(2005) (specifically distinguishing the PBT statute’s procedure from postarrest procedure).
¶ 48 B. Probable Cause To Arrest Absent the PBT Results
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¶ 49 The State next argues that, even if the PBT results were properly suppressed, Delisio had
probable cause to arrest defendant for DUI. 4 An officer has probable cause to arrest if he knows
facts that would lead a reasonably cautious person to believe that the arrestee has committed an
offense. Grant, 2013 IL 112734, ¶ 11. Probable cause is based on common-sense probability,
not proof beyond a reasonable doubt. Id. When assessing whether there was probable cause to
arrest, the court should consider the totality of the circumstances, including the officer’s law
enforcement experience. Id.
¶ 50 Here, the trial court’s factual determinations were not against the manifest weight of the
evidence. We give deference to the court’s assessment that Delisio’s testimony was inconsistent,
and, after watching the video, we accept the court’s factual determinations. For example, the
court reasonably determined that, although defendant might have committed traffic violations,
these violations were minor. We also accept the court’s determination that defendant walked and
spoke normally during the interaction.
¶ 51 The trial court reasonably discounted the reliability of the HGN and walk-and-turn tests.
As the court stated, “if there’s mistakes in the instructions and mistakes in the administration of
the tests, then they’re not sufficiently reliable to make that informed decision as to whether or
not to arrest defendant.” The HGN test was administered in the presence of flashing lights,
which was against protocol. We accept the court’s determination that defendant did not lean
forward during the test. The walk-and-turn test was also administered incorrectly. The record
supports the court’s determination that defendant should not have lost points for reverting to a
4
The State does not alternatively argue that, if Delisio lacked probable cause to arrest
defendant for DUI, the arrest nevertheless was valid because he had probable cause to arrest
defendant for a different offense. Thus, we do not address any such argument.
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relaxed stance before beginning the test. Delisio never told defendant to hold the heel-to-toe
position through the beginning of the test. Defendant was instructed to hold the position while
listening to the instructions. Defendant did not revert to a relaxed stance until after the
instructions were complete, when Delisio asked, “Do you understand all that?” The record also
supports the court’s assessment that, about halfway through the 30-second one-legged-stand test,
defendant moved with “a hop and a slight sway.” However, defendant never put down his foot.
¶ 52 The State notes factors not stressed by the trial court, including that defendant can be
heard on the video saying, “I’m probably borderline, I am not going to lie.” Defendant made the
statement after satisfactorily performing the walk-and-turn test and in the context of asking to
call his parents. The trial court could have reasonably decided not to take defendant’s statement
at face value. It could have interpreted defendant’s statement as a passive attempt to end his
encounter with Delisio or, simply, as apprehension over additional field tests. Alternatively, it
could have decided not to attribute much weight to the statement.
¶ 53 The State also notes that defendant had four beers over eight hours and had glassy,
dilated eyes. We do not know for certain that the trial court believed Delisio’s statement that
defendant had glassy, dilated eyes; the court did not comment one way or the other. The court
elsewhere pointed to inconsistencies in Delisio’s testimony. In any case, these points do not
render the court’s overall factual determination against the manifest weight of the evidence.
Defendant admitted to having four beers over eight hours, but defendant moved and spoke in an
ordinary manner. Defendant took the HGN and walk-and-turn tests, but both of those tests were
administered incorrectly and in the face of flashing lights. Defendant performed satisfactorily on
the walk-and-turn test. Defendant faltered during the one-legged-stand test, but only “slight[ly].”
These facts do not support probable cause to arrest for DUI.
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2016 IL App (2d) 150634
¶ 54 The State likens this case to Rush, 319 Ill. App. 3d 34, where the appellate court reversed
the trial court’s finding of no probable cause to arrest the defendant for DUI. In Rush, the
defendant momentarily crossed the center line. Id. at 39. When stopped, the defendant was
unaware that he had committed a traffic violation. Id. at 36. He smelled of alcohol and had
slurred speech. He admitted to drinking five or six beers. Id. He later admitted to drinking
seven or eight beers. Id. at 37. He had an open can of beer in the seat beside him, and he was
the only person in the vehicle. Id. at 36. The officer properly administered several field tests.
Id. During the walk-and-turn test, the defendant failed to touch his heels to his toes and also
raised his arms for balance. Id. During the one-legged-stand test, the defendant put down his
leg five times. Id. The defendant did not fail every test; for example, he was able to count
backward from 80 to 60. Id. at 37. The defendant’s PBT reading was 0.07. Id. (After his arrest,
the defendant submitted to a chemical test that revealed a BAC of 0.11. Id. at 35.)
¶ 55 Rush is distinguishable. The defendant in Rush admitted to drinking as many as eight
beers over a number of hours and, unlike defendant here, had an open can of beer in the seat
beside him, had slurred speech, submitted to properly administered field tests, undisputedly
failed several of those tests (e.g., putting his foot down five times), and had a concerning PBT
result. In contrast, our defendant had four beers over eight hours but moved and conversed
normally, and, per the trial court’s factual determination, faltered slightly on only one test.
Again, these facts do not support probable cause to arrest for DUI.
¶ 56 III. CONCLUSION
¶ 57 For the aforementioned reasons, we affirm the trial court’s judgment.
¶ 58 Affirmed.
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