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After a second jury trial, John A. Brooks (defendant) was found guilty of drivingunder the influence of alcohol (DUI). Defendant was sentenced to serve 12 months ofprobation, to pay a $600 fine, costs, and a $25-per-month probation fee, to attend DUIcounseling, and to pay $100 for the services of his appointed assistant public defender. Defendant now appeals from his conviction, claiming that he was denied a fair trial due tothe ineffective assistance of his appointed trial counsel. The sole issue for review is whetherdefendant was denied the effective assistance of counsel. We affirm.

On March 26, 2000, defendant was arrested and charged with DUI in violation ofsection 11-501(a)(2) of the Illinois Vehicle Code (625 ILCS 5/11-501(a)(2) (West 2000)). The court appointed an assistant public defender to represent defendant. Prior to the trial,defendant's appointed counsel filed only one pretrial discovery motion. On October 3, 2000,the jury trial commenced. After each of the parties had rested, the jurors deliberated forseveral hours. During its deliberations, on two separate occasions the jury indicated that itwas unable to reach a unanimous verdict. Ultimately, the trial was declared a mistrial dueto the jurors' continued inability to reach a unanimous verdict. On December 5, 2000, thecase was recalled for a jury trial, and the same assistant public defender continued asdefendant's appointed counsel. Prior to the December 5, 2000, jury trial, defendant's counseldid not file a single pretrial motion.

Testimony from the prosecution's witnesses indicated that, at approximately 1 a.m. onMarch 26, 2000, two Murphysboro police officers noticed defendant's vehicle stopped at agreen light. After the traffic light turned yellow, defendant's vehicle turned left. The twoofficers (riding in the same squad car) followed defendant for about a mile. The officersobserved defendant's vehicle swerve across the centerline, then swerve across the shoulderline, and then swerve again across the centerline. They then stopped defendant andapproached his vehicle. There were three persons in the vehicle: defendant, his wife, andtheir six-year-old son. The officer who approached defendant's side of the vehicle detectedan odor of alcohol. The officer observed that defendant's eyes were red and watery and thathis speech was slurred. Upon being asked for his driver's license, defendant appearedconfused and fumbled for his license. Defendant told the police that he had consumed a fewdrinks earlier that evening.

The officers gave defendant a battery of field sobriety tests: (1) the horizontal-gaze-nystagmus (HGN) test, (2) the one-leg-stand test, (3) the finger-count test, and (4) the walk-and-turn test. According to the officers, defendant failed the HGN test, the one-leg-standtest, and the walk-and-turn test. Defendant had difficulty with his balance and swayed fromside to side throughout the field sobriety testing. Defendant, however, did successfullyperform the finger-count test. After performing the field sobriety tests, defendant was askedto submit to breath alcohol testing by way of a portable breath test (PBT) instrument, whichhe refused. Defendant was then arrested and transported to the police department. He wasgiven a citation for DUI and was asked to submit to a breathalyzer test at the policedepartment. Defendant refused the test and was ultimately taken to the county jail. Becausethe officers believed that defendant's wife also may have been intoxicated-she had a strongodor of alcohol, red, watery eyes, and slurred speech and had refused a PBT-she and theirson were transported from the scene by another officer.

Trial testimony revealed that defendant was a 53-year-old commercial pilot at the timeof his arrest. In 1992, defendant suffered a heart attack that required triple-bypass surgery. The surgery required the removal of veins in both of defendant's legs. The removal of theveins in defendant's legs was reported to cause poor circulation, swelling, numbness, and aloss of feeling in the bottoms of his feet.

Prior to being stopped by police, defendant and his family were at a friend's house fora barbeque. They arrived at their friend's house at approximately 4 p.m. on March 25, 2000,and did not leave until approximately 12:30 a.m. on March 26, 2000. Defendant stated thathe had consumed approximately four or five mixed drinks from the time he arrived untilapproximately 9:30 p.m., at which time he took a three-hour nap before leaving the house. Defendant was noted as having a "good buzz" before taking his nap at 9:30 p.m. but was notthought to be intoxicated at the time he left the house.

At the trial, defendant admitted to crossing the centerline of the road, but he claimedthat he did so only in response to a car rapidly approaching behind him. Defendant testifiedthat once the car behind him slowed, he realized that the vehicle was a police car and hepulled over on the shoulder of the road. Defendant denied stumbling after exiting his car. Defendant believed that he performed the walk-and-turn test as directed. Also, defendanttestified that he performed poorly on the one-leg-stand test because of swelling, numbness,and a lack of feeling in his feet. Finally, defendant denied that he was asked to submit to abreathalyzer test at the police station, and he claimed that it was not until he read the arrestingofficer's report that he became aware that he was reported to have denied such testing.

The jury found defendant guilty of DUI. Defendant filed a timely appeal.

Defendant now argues that he was denied a fair trial, as guaranteed by the sixthamendment of the United States Constitution, because of the ineffective assistance ofcounsel. Specifically, defendant claims that his trial counsel was ineffective because (1) hefailed to object to the admission of testimony regarding defendant's refusal to submit to aPBT, as well as testimony regarding its availability and accuracy, (2) he failed to object tothe admission of testimony regarding the HGN field sobriety test performed upon defendantand on cross-examination he elicited damaging testimony regarding such testing, (3) he failedto file a motion to quash defendant's arrest, on the basis of a lack of probable cause, and (4)he failed to implement a trial strategy.

The effective assistance of counsel, as guaranteed by the sixth amendment right tocounsel, is measured by a test of whether the defendant received "reasonably effectiveassistance." Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052,2064 (1984). In order to establish an ineffective-assistance-of-counsel claim, a defendantmust show that "there is a reasonable probability that, but for counsel's unprofessional errors,the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 80 L.Ed. 2d 674, 104 S. Ct. at 2068. "A reasonable probability is a probability sufficient toundermine confidence in the outcome." Strickland, 466 U.S. at 694, 80 L. Ed. 2d 674, 104S. Ct. at 2068. In making this showing, a defendant must show both (1) that his or hercounsel's performance was deficient and (2) that the deficient performance prejudiced his orher defense. Strickland v. Washington, 466 U.S. at 687, 80 L. Ed. 2d 674, 104 S. Ct. at 2064. The failure to satisfy either the deficiency prong or the prejudice prong of this test precludesa finding of ineffective assistance. Strickland, 466 U.S. at 687, 80 L. Ed. 2d 674, 104 S. Ct.at 2064.

An inquiry into the performance of counsel requires an examination of whether theassistance provided the defendant was reasonable, considering all the circumstancessurrounding the challenged conduct from counsel's perspective at the time. Strickland, 466U.S. at 688-89, 80 L. Ed. 2d 674, 104 S. Ct. at 2065. The defendant must overcome thestrong presumption that counsel provided adequate assistance and exercised reasonableprofessional judgment in making all significant decisions. Strickland, 466 U.S. at 690, 80L. Ed. 2d 674, 104 S. Ct. at 2066. Establishing that counsel has committed professional errordoes not warrant a reversal if the error had no effect on the judgment. Strickland, 466 U.S.at 691, 80 L. Ed. 2d 674, 104 S. Ct. at 2066-67.

We first address defendant's contention that his counsel's representation constitutedthe ineffective assistance of counsel because his attorney failed to prevent the admission oftestimony regarding defendant's refusal to submit to a PBT, by either filing a pretrial motionor making objections at the trial. The prosecuting attorney elicited the following testimonyfrom one of the police officers, without objection from defense counsel:

"Q. And did you have any instruments with you that evening to measure breathalcohol content?

A. We do have [PBT] instruments at our police department that we can utilizeduring a traffic stop involving alcohol.

Q. And did you have one with you that evening?

A. Yes.

Q. What kind of a device is that, or how is it used?

A. A [PBT] is a smaller instrument that's used for recording a field level ofblood[-]alcohol content in the system. It's not as scientifically accurate as the breathinstrument used at the police department that's stationary. However, it will record ifthere is alcohol in the system or not.

Q. And what's the procedure for giving a test with that instrument?

A. We request [that] the driver take the test. We produce the instrument. Weproduce a sterile[,] sealed tube that the driver puts to their [sic] lips and blows abreath through, and then the instrument reads any alcohol in the system.

Q. Did you ask the defendant to take a test with that instrument while youwere on the scene?

A. Yes, I did.

Q. Did he do that?

A. No, he did not.

Q. Did he give you any reason why he didn't want to do that?

A. Honestly, I don't recall his reason specifically."

Defendant notes that Illinois courts have held that PBT results are not admissible in theState's case in chief to prove the defendant's intoxication. People v. Rose, 268 Ill. App. 3d174, 178, 643 N.E.2d 865, 868 (1994); People v. Halsey, 273 Ill. App. 3d 160, 652 N.E.2d434 (1995). Defendant argues that because the results of a PBT are inadmissible, testimonyregarding defendant's refusal to submit to the testing is equally inadmissible, as well as anytestimony concerning its availability and accuracy. Furthermore, defendant argues thatcounsel's failures in this regard constituted professional error that resulted in prejudice andadversely affected the outcome of his trial.

Police officers may use PBT results to determine whether probable cause exists toarrest a person for driving under the influence. Rose, 268 Ill. App. 3d at 178, 643 N.E.2d at868. PBT results may be used as an investigative tool similar to field sobriety tests. Peoplev. Davis, 296 Ill. App. 3d 923, 928, 695 N.E.2d 1363, 1366 (1998); Rose, 268 Ill. App. 3dat 181, 643 N.E.2d at 870. While other field sobriety tests involve human observations ofa person's behavior, PBT instruments scientifically measure an aspect of a person's bodychemistry. Rose, 268 Ill. App. 3d at 181, 643 N.E.2d at 870. Because of this criticaldifference, the Department of Public Health has issued regulatory safeguards governing anybody chemistry testing. Rose, 268 Ill. App. 3d at 181, 643 N.E.2d at 870. Consequently,chemical test results are admissible only if the State can show that the instruments used toconduct these tests complied with all the proper statutory and regulatory standards outlinedin section 11-501.2 of the Illinois Vehicle Code (625 ILCS 5/11-501.2 (West 2000)). Peoplev. Orth, 124 Ill. 2d 326, 340, 530 N.E.2d 210, 216-17 (1988). PBT instruments (unlikebreathalyzers) do not meet these stringent requirements for admissibility and, thus, neitherdo the results. Rose, 268 Ill. App. 3d at 181, 643 N.E.2d at 870.

In the instant case, the State argues that Sergeant Lerge's testimony regardingdefendant's refusal to take the PBT was not elicited for the purpose of proving intoxicationbut that, rather, the testimony was sought for the purpose of showing that defendant had aguilty mind-i.e., that the results of the PBT would incriminate him.

We find this to be a distinction without a difference as it pertains to the potential forsubstantial prejudice. Evidence of a defendant's refusal to take a test, the results of whichare inadmissible, is not relevant evidence of a defendant's innocence or guilt and could leada jury to draw unwarranted inferences that the defendant declined the test because he or shewas guilty. The dangers of allowing testimony of a defendant's refusal to submit to scientifictesting that is otherwise inadmissible have been recognized by the appellate court in othercontexts.

In People v. Eickhoff, 129 Ill. App. 3d 99, 471 N.E.2d 1066 (1984), the court affirmedthe circuit court's grant of a defendant's motion to suppress a request, and subsequent refusal,to submit to polygraph testing. The Eickhoff court stated, "Testimony that a defendant wasoffered a polygraph test, or that he refused one, interjects into the case inferences which beardirectly on his guilt or innocence: either he failed the test *** or he refused to submit totesting in fear that his guilt would be shown." Eickhoff, 129 Ill. App. 3d at 103, 471 N.E.2dat 1069. Accordingly, the Eickhoff court instructed, "That which may not be accomplisheddirectly by evidence of polygraph test results may not be accomplished indirectly byreferences to whether a defendant sought, declined, or was offered a polygraph test." (Emphasis in original.) Eickhoff, 129 Ill. App. 3d at 103, 471 N.E.2d at 1069. In discussingthe potential negative effect of allowing testimony of a defendant's refusal to submit topolygraph testing, the court examined cases from other jurisdictions that had addressed theissue. The Eickhoff court quoted the insights of the Supreme Court of New Jersey:

" 'In terms of degree of prejudice, the average jury, unfamiliar with the presentscientific uncertainty of the test, might very well be even more affected by proof ofa defendant's refusal to take the test than by the evidence of results adverse to himcoupled with proof of its scientific imperfection. A refusal might be regarded asindicating a consciousness of guilt.' " Eickhoff, 129 Ill. App. 3d at 104, 471 N.E.2dat 1069 (quoting State v. Driver, 38 N.J. 255, 261, 183 A.2d 655, 658 (1962)).

Though Eickhoff and the cases discussed therein focus on the testimony of a defendant'srefusal to submit to requested polygraph testing, we find many of the concerns highlightedin those cases to be identical to those in the case sub judice.

Here, the PBT testimony elicited by the State in its case in chief provided the jury withevidence that a PBT was available and offered to defendant, that the PBT could record theblood-alcohol content of defendant, and that defendant refused to submit to such testing. However, there is no indication that the jury was familiar with the scientific uncertainty ofthe PBT's ability to determine whether defendant's level of blood-alcohol content exceededthe legal limit. Accordingly, the jury might very well have been even more affected by theproof of defendant's refusal to take the test than by the evidence of adverse PBT resultscoupled with proof of its scientific imperfection. The fear is that the jury could inferdefendant's guilt from his refusal to submit to a test, even though the results of the test areinadmissible to prove defendant's guilt.

Accordingly, we hold that testimony regarding a defendant's refusal to submit to aPBT-as well as any evidence of the test's accuracy or availability-is inadmissible in theState's case in chief. However, we do not conclude in this case that defendant wassubstantially prejudiced by the admission of this testimony.

There was credible testimony at the trial that defendant also refused the breathalyzertest at the police station. Breathalyzer machines do not inherently suffer from the samescientific uncertainty that affects PBT machines. The admissibility of breathalyzer testresults is well established, and therefore, to prove intoxication, the prosecution may utilizeboth the test results and the refusal to take the test. See Rose, 268 Ill. App. 3d 174, 643N.E.2d 865; People v. Keith, 206 Ill. App. 3d 414, 564 N.E.2d 901 (1990).

We believe, however, that in this case any perceptions of guilt the jury may haveinferred from defendant's refusal to take the breathalyzer test would have overshadowed anysimilar perceptions resulting from testimony regarding his refusal to take the PBT. Becausewe cannot find that defendant has satisfied the prejudice prong of the Strickland test, we neednot determine whether counsel's performance was constitutionally deficient. See People v.Edwards, 195 Ill. 2d 142, 163, 745 N.E.2d 1212, 1223-24 (2001).

Next, defendant claims that he was denied the effective assistance of counsel becausehis attorney failed to object to the admission of testimony concerning HGN testing andactually elicited damaging testimony on the issue. However, the record reveals that counsel'scross-examination of the arresting officer concerning the administration of HGN testing upondefendant was a calculated decision to try to impeach the credibility of the officer andtherefore was clearly a part of counsel's strategy. In our analysis of defendant's claims weneed not illustrate every detail of counsel's conduct concerning the admission of the HGNtestimony on the direct examination and the cross-examination of the arresting officer; it issufficient only that we conclude that such conduct was the result of trial strategy. "[N]eithermistakes in strategy nor the fact that another attorney with the benefit of hindsight wouldhave handled the case differently indicates the trial lawyer was incompetent." People v.Vera, 277 Ill. App. 3d 130, 138, 660 N.E.2d 9, 16 (1995). Defendant has failed to satisfy thedeficiency prong of the Strickland test and has thereby failed to show that he was denied afair trial.

Defendant also contends that counsel's failure to file a motion to quash his arrest, forthe lack of probable cause, amounted to the ineffective assistance of counsel. To rendereffective assistance, counsel need not file futile motions. People v. Muhammad, 257 Ill.App. 3d 359, 367, 629 N.E.2d 106, 112 (1993). Defendant concedes that there is apossibility that the motion to quash would not have been granted. The record, however,establishes that the arresting officers clearly had probable cause to arrest defendant and thata motion to quash would have indeed been denied. Because the filing of a motion to quashdefendant's arrest would have been an exercise in futility, we cannot find that counsel'sperformance was deficient. Accordingly, defendant has again failed to satisfy the deficiencyprong of Strickland.

Lastly, defendant contends that he was denied the effective assistance of counselbecause of his attorney's failure to employ a trial strategy. Although defendant initiallyclaims that his counsel did not employ a trial strategy, we find instead that his argumentquestions the effectiveness of the strategy and tactics that counsel pursued. Specifically,defendant takes issue with counsel's decision to call certain witnesses, including the decisionthat defendant testify. We presume that defense attorneys pursue sound trial strategies. Strickland, 466 U.S. at 689, 80 L. Ed. 2d 674, 104 S. Ct. at 2065. Trial strategies areunsound only when no reasonably effective criminal defense attorney, facing similarcircumstances, would pursue such strategies. People v. Faulkner, 292 Ill. App. 3d 391, 394,686 N.E.2d 379, 382 (1997). Because we do not believe that defendant has overcome thepresumption that his counsel pursued a sound trial strategy in his defense and because wehave noted counsel's use of strategy in attempting to impeach the arresting officer's testimonyconcerning HGN testing, we reject defendant's claims.

For the foregoing reasons, defendant's conviction is affirmed.

Affirmed.

MAAG, P.J., and HOPKINS, J., concur.