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Refusal to Test

Once a DUI suspect has been asked to submit to chemical testing, any decision, whether to submit or not to submit to the tests, can have both civil and criminal ramifications. Refusing to take the test raises several issues in a criminal DUI case including admissibility of the refusal as evidence, refusal to take the test as a crime itself and using the refusal for enhancement purposes.


When prosecuting DUI cases involving alcohol, the state frequently relies on chemical test results to prove the DUI defendant's guilt. If the DUI defendant refused to submit to chemical testing, the prosecutor will attempt to introduce evidence of that refusal and induce the court to prematurely conclude that the DUI defendant knew he would fail the test; hence he/she is guilty of DUI. In these cases, a DUI lawyer should be prepared to aggressively argue this point.

Some state statutes are prepared for this dilemma and detail the admissibility of an individual's refusal to submit to a blood alcohol test. The language of one statute specifies, “If a person under arrest refuses to submit to a chemical test, evidence of refusal shall be admissible in any civil or criminal action or proceeding arising out of acts alleged to have been committed while the person was driving or in actual physical control of a motor vehicle while under the influence of alcohol or drugs.”


Although statutory language may provide for the admission of refusal evidence, and the U.S. Supreme Court has upheld the constitutionality of such provisions, state courts may limit the application of such a statute based on the language of the state constitution or judicial interpretation of the state's statutory DUI scheme. One court has restricted admission of refusal evidence to situations in which the DUI defendant denies being given the opportunity to take a chemical test, claims that results of the test taken were exculpatory, challenges the competency of the testing or challenges the credibility of the officer.


Compliance with the qualifying provisions of the statute providing for the admission of refusal evidence may be required. For example, a statute may permit the prosecution to introduce evidence of the DUI defendant's refusal to submit to chemical testing at trial, provided the defendant was advised of the consequences of refusal. If the warning was not given, the refusal evidence would be inadmissible. Frequently, the admissibility of refusal evidence will be dependent on compliance with the state's implied consent statute.


The admissibility of refusal evidence in a criminal proceeding for a DUI drinking/driving violation may have an impact on the individual's constitutional privilege against self-incrimination and right to due process. The discussion of whether the admission of refusal evidence constitutes a violation of the provision against self-incrimination focuses on two aspects of refusal evidence: 1) the classification of refusal evidence as testimonial or physical in nature and 2) determination of the coercive or voluntary nature of refusal. Due process considerations center on the involuntary testing of an individual following a refusal.

The bottom line for this issue may be concluded as follows. A driver who has been arrested for a DUI drinking/driving offense has the "choice" of submitting to a blood alcohol test, which may yield incriminating results, or refusing the test with the consequences of license revocation and the admission of that refusal as evidence in the criminal trial.

The Fifth Amendment of the U.S. Constitution provides that no individual "shall be compelled in any criminal case to be a witness against himself." The leading U.S. Supreme Court case on the issue ruled that the admission of an individual's refusal to submit to a blood alcohol test does not violate the Fifth Amendment privilege against self-incrimination applied to the states by the Fourteenth Amendment.


This opinion took the position that a refusal to submit to a blood alcohol test is not the type of compelled testimonial evidence protected by the Fifth Amendment. The protection against self-incrimination does not extend to all forms of evidence, which may be provided by the individual to the state. Rather, the Fifth Amendment privilege only protects the individual from being compelled to provide evidence of a testimonial or communicative nature.


As stated previously, the results of the blood alcohol test are considered real or physical evidence, and as such do not receive protection under the Fifth Amendment. Simply put, as the results of the test are not constitutionally protected evidence, refusal to submit to a blood alcohol test is not a constitutionally protected right. Furthermore, statutory language that permits a refusal does not establish a right to refuse a blood alcohol test when requested following arrest for a DUI drinking/driving violation. Such language merely covers a contingency when the cooperation of the individual is not forthcoming.


Although the Fifth Amendment does not protect the actual test results, additional statements made at the moment of refusal may be protected, as they could be considered testimonial or communicative in nature. In states where there is no specific statutory obligation to take the tests, the DUI defendant’s lawyer could successfully stop the defendant’s refusal to submit to field sobriety testing from being introduced as evidence against at trial.


Compulsion is another determining factor in the debate over constitutionality of admissibility of refusal evidence. The U.S. Supreme Court has found that there is no coercion involved in obtaining refusal evidence when an individual is arrested for a DUI drunk-driving offense and is requested to submit to a blood alcohol test.


Even though the DUI defendant had not been warned that a refusal could be used against him at trial, some courts have still ruled that the defendant's rights under the due process clause was not violated. Admittedly, the arresting officers did advise the DUI defendant that his refusal to submit to chemical testing could result in the loss of his driver's license for one year however, the officers did not specifically inform him that evidence of the refusal could also be used in any criminal proceedings against him. Because a suspect does not have a constitutional right to refuse chemical testing, the DUI drinking/driving defendant cannot claim that a warning was constitutionally required.


Evidentiary rules can alter the admissibility of evidence of refusal. One such rule states, "although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice." Courts have found refusal evidence to be generally relevant to establishing evidence of consciousness of guilt, although on occasion it has been held irrelevant.


One court held that if the refusal is submitted in order to draw an inference of guilt or innocence, then it is irrelevant. Since the refusal may be admitted as evidence despite the best arguments, the best method to overcome this particular problem for the DUI defendant may be for the defendant to present evidence of his reasons for refusal. It has been found that this method may effectively counteract any prejudice admission of evidence of refusal may cause.


Some states have enacted a statute criminalizing the refusal to submit to a blood alcohol test. The purpose of the refusal statute is "to encourage all suspected drunk drivers to take the breathalyzer test." The criminal offense of refusing to submit to chemical testing is separate and distinct from the DUI drinking/driving offense. The penalties imposed as a result of a conviction are additional to the penalties imposed if the defendant is also convicted of the DUI drinking/driving offense.

In spite of if the DUI defendant pleads guilty or is acquitted of the DUI drunk driving charge, the criminal liability for refusing to submit to chemical testing remains in full force. In fact, some states go so far as to actually use the fact that the DUI defendant refused to submit to chemical testing to enhance the penalty the defendant is to receive upon conviction of the DUI offense. Despite the injustice of making a suspect's refusal to submit to chemical testing a crime, the relevant statute requires a mandatory jail sentence for those convicted of DUI offenses after refusing to submit to chemical testing.

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