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34.7 Refusal To Submit To Blood Alcohol Test

    34.7.1 Refusal Of Blood Alcohol Test: No Consciousness Of Guilt If Refusal Based On Attempt To Exercise Legal Rights
    34.7.2 Refusal To Submit To Blood Alcohol Test: 4th Amendment Challenges
    34.7.3 Probable Cause As Prerequisite To Considering Refusal Of Defendant To Submit To Blood Alcohol Testing
    34.7.4 5th Amendment Challenge to Comment On Refusal To Submit To Blood Alcohol Test
    34.7.5 5th Amendment Challenge To Testimonial Response Of Defendant Elicited By Request For Blood Alcohol Test
    34.7.6 Refusal to Take Blood Alcohol Test: Instruction as Improper Comment on the Evidence
    34.7.7 Refusal Of Blood Test: Fear Of Endangering Health From Withdrawal Of Blood
    34.7.8 Refusal To Submit To Blood Alcohol Test: Inapplicable To Nature Or Degree Of Crime
    34.7.9 Defense Theory That Defendant Did Not Willfully Refuse The Blood Alcohol Test
    34.7.10 Due Process Challenge To Admission Of Defendant's Blood Alcohol Test Refusal Based On The Denial Of The Defendant's Request For Counsel
    34.7.11 Defense Theory That Subsequent Consent Cures Initial Refusal Of Sobriety Test
    34.7.12 Refusal Of Blood Alcohol Test: Defense Theory That Physical Trauma And/Or Head Injuries Impaired Defendant's Ability To Function Normally

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PRACTICE NOTE: "Whatever the merits of this line of reasoning [that refusal to provide nontestimonial evidence does not violate the 5th Amendment], we think it is inapplicable to cases where the defendant refuses to consent to a search which he mistakenly believes to be illegal." (Elson v. State (AK 1983) 659 P2d 1195, 1199.) Even if no constitutional rights were violated, the defendant's subjective reliance upon his/her constitutional rights provides a nonculpable explanation for his/her refusal. If this is the case, the jury should be required to make a preliminary finding that the defendant was not relying on his/her constitutional rights. (See e.g., NCJIC 34.1.4 [Jury Must Find Foundational Facts Before Considering Evidence As Consciousness Of Guilt].) This may also be a matter for argument.

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PRACTICE NOTE: It is permissible for the state to present evidence that the defendant was offered and refused a breath test after he had been made aware of the nature of the test and the effect of his refusal. (See e.g., People v. Roberts (CA 1992) 2 C4th 271, 310-311 [6 CR2d 276]; see also State v. Merritt (CT 1994) 647 A2d 1021, 1030.) However, the 4th Amendment's prohibition of unreasonable searches and seizures requires that there be probable cause for arrest before a defendant forfeits his right to refuse a blood test. (Schmerber v. California (1966) 384 US 757, 768-70 [86 SCt 1826; 16 LEd2d 908]; see also Burnett v. Anchorage (9th Cir. 1986) 806 F2d 1447, 1451 [defendant may challenge evidence of his refusal to submit to a breath test by attacking the validity of the arrest].) If the record had establishes that the defendant refused to take the blood test for reasons within the scope of the 4th Amendment, the propriety of the consciousness of guilt instruction "might require more scrutiny." (Roberts, 2 C4th at 311.)

    Hence, if it can be proven that the blood test would have violated the defendant's Fourth Amendment rights it would improperly chill the exercise of those rights to instruct the jury upon consciousness of guilt. (See e.g., Nelson v. City of Irvine (9th Cir. 1998) 143 F3d 1196, 1205 [drunk driving suspect who submits to breath test has Fourth Amendment right against forcible taking of blood for blood test]; see also People v. Fiscalini (CA 1991) 228 CA3d 1639 [279 CR 682] [extraction of blood was unreasonable seizure because defendant had already submitted to urine test which was functional equivalent of blood test]; State v. Olmcheid (MN 1992) 492 NW2d 263, 265 [probable cause is necessary to invoke the implied consent law].)

    See also NCJIC 34.7.3 [Probable Cause As Prerequisite To Considering Refusal Of Defendant To Submit To Blood Alcohol Testing].

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    34.7.3    Probable Cause As Prerequisite To Considering Refusal Of Defendant To Submit To Blood Alcohol Testing

RATIONALE: Even if the 5th Amendment rights to due process and against self incrimination are not implicated by admission into evidence of defendant's refusal to take a blood alcohol test, the 4th Amendment may be implicated.

POINTS AND AUTHORITIES: See NCJIC 34.7.2 [Refusal To Submit To Blood Alcohol Test: 4th Amendment Challenges]; see also NCJIC 34.6 [Refusal To Submit To Official Orders Or Requests].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

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PRACTICE NOTE: To compel the accused to choose between taking the sobriety test and perhaps producing potentially incriminating real evidence, and refusing to take it and have adverse testimonial evidence used against him at trial, would unconstitutionally compel an accused to furnish evidence against himself or herself. (See Commonwealth v. Zevitas (MA 1994) 639 NE2d 1076, 1079; City of Seattle v. Stalsbroten (WA 1998) 957 P2d 260, 260 et seq. [driver's refusal to perform a voluntary field sobriety test is testimonial in nature and protected by 5th Amendment]; but see South Dakota v. Neville (1983) 459 US 553, 564 [103 SCt 916; 74 LEd2d 748] ["A refusal to take a blood-alcohol test, after a police officer has lawfully requested it, is not an act coerced by the officer, and thus is not protected by the 5th Amendment privilege against self incrimination"]; People v. Roberts (CA 1992) 2 C4th 271, 310-11 [6 CR2d 276] [holding that evidence and instruction on refusal to take blood test does not impact 5th Amendment]; State v. Taylor (FL 1995) 648 So2d 701 [refusal to take sobriety test did not constitute compelled self incrimination where defendant was given choice to take test or not, and where tests were painless, noninvasive, and commonplace].)

    See also NCJIC 34.6 [Refusal To Submit To Official Orders Or Requests].

    See also NCJIC 34.7.5 [5th Amendment Challenge To Testimonial Response Of Defendant Elicited By Request For Blood Alcohol Test].

RESEARCH NOTE:

Annotation, Admissibility In Criminal Case Of Evidence That Accused Refused To Take Test Of Intoxication, 26 ALR4th 1112, 1138-39, 1144-45.

Opinion Of The Justices To The Senate (MA 1992) 591 NE2d 1073, 1076 [Discussing Conflict Among The Jurisdictions On The Issue].

See also Benchbook For U.S. District Court Judges [5.04 Handling The Recalcitrant Witness].

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PRACTICE NOTE: "It is important to note that the court in Neville [South Dakota v. Neville (1983) 459 US 553 [103 SCt 916; 74 LEd2d 748]] was not addressing the particular statements, just the refusal. Since it has been found that breath tests are physical evidence and therefore are admissible, there can be no argument that the statements made in conjunction with the refusal are physical. They are themselves testimonial evidence, straight from the suspect's mouth." (Reiff, Drunk Driving and Related Vehicular Offenses 2d Ed. (Lexis, 1999) § 8-8(b) ¶ 8, p. 223.)

    "It is one thing to allow into evidence the fact that a defendant refused to submit to a breath test. It is another thing to allow a direct, testimonial response which potentially incriminates the person. Custodial interrogation which elicits an incriminating response, absent a Miranda warning and a waiver of such rights, is a violation of due process." (Ibid.; see also Pennsylvania v. Muniz (1990) 496 US 582, 589 [110 SCt 2638; 110 LEd2d 528]; Allred v. State (FL 1993) 622 So2d 984, 987 [request to recite alphabet "from C to W" is an attempt to solicit a testimonial response].)

    See also NCJIC 34.7.4 [5th Amendment Challenge To Comment On Refusal To Submit To Blood Alcohol Test].

See Benchbook For U.S. District Court Judges [5.04 Handling The Recalcitrant Witness].

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PRACTICE NOTE: Even if evidence that a defendant refused to take a blood alcohol test is admissible (see South Dakota v. Neville (1983) 459 US 553, 564 [103 SCt 916; 74 LEd2d 748]), instruction on this subject may constitute an improper comment by the court on the effect of such evidence. (IDAHO CRIMINAL JURY INSTRUCTIONS, ICJI 1007 (comment) [Refusal To Take Test] (Idaho Law Foundation, Inc., 1995); see also NCJIC 6.1 [Permissive Inference As Improper Comment On Evidence].)

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PRACTICE NOTE: The inference of consciousness of guilt from refusal to submit to a blood test may be negated by a "reasonable factual basis for the refusal, for example, endangerment of the health of the accused by the withdrawal of blood." (Bailey v. Commonwealth (VA 1974) 207 SE2d 828, 829; see also Cash v. Commonwealth (VA 1996) 466 SE2d 736, 738 [fear of endangering health from blood test may be reasonable].)

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    See NCJIC 34.1.5 [Consciousness Of Guilt: Inapplicable To Nature Or Degree Of Guilt].

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RATIONALE: There may be an issue as to whether the defendant was capable of understanding the duty to submit to the test and of voluntarily refusing. In such a case, it may be appropriate to instruct the jury on the need to find these preliminary facts before considering the refusal to submit to the test against the defendant.

POINTS AND AUTHORITIES: A refusal to take a blood alcohol test only raises a consciousness of guilt if the refusal was willful. (See NCJIC 34.7.1 [Refusal Of Blood Alcohol Test: No Consciousness Of Guilt If Refusal Based On Attempt To Exercise Legal Rights]; and NCJIC 34.7.7 [Refusal Of Blood Test: Fear Of Endangering Health From Withdrawal Of Blood].) Hence, if the defendant did not understand that a test was being requested or that he/she had a duty to submit to testing or was incapable of complying, no consciousness of guilt should be inferred.

    In other words, evidence that would tend to show that the refusal was for reasons unrelated to a consciousness of guilt tends to abrogate, or at least diminish, the reasonableness of the inference to be drawn from the unexplained refusal to take the test.  (State v. Bolstad (WI 1985) 370 NW2d 257, 262]; see also WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 235 [Refusal Of Defendant To Furnish Sample For Alcohol Test] comment ¶ 4 (University of Wisconsin Law School, 2000).)

    Moreover, if there was an associated accident and the defendant received a blow to the head or other traumatic injury this could affect the willfulness of the refusal. (See NCJIC 34.7.12 [Refusal Of Blood Alcohol Test: Defense Theory That Physical Trauma And/Or Head Injuries Impaired Defendant's Ability To Function Normally].)

    See also NCJIC 34.4.1 [Consciousness Of Guilt: Falsehood -- Proof Of Necessary Preliminary Facts].

    See also NCJIC Chapter 34 [Consciousness Of Guilt].

    See also NCJIC 44.5 [Liability Based On Omission: Requirement That Duty Be Physically Capable Of Performance.

    See also NCJIC 44.6 [Physical Impossibility As Defense To Charge Based On Omission Of Duty Or Failure To Act].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 2.4; 4.1].

USE NOTE: When the refusal is an "essential fact," the instructions below should be modified to require that the preliminary facts be proven beyond a reasonable doubt. (See NCJIC 270.4.2 [Proof Beyond A Reasonable Doubt: Applicable To Subordinate Facts Essential To Proof Of An Element Of A Crime].)

    You may not consider the defendant's refusal to submit to a blood alcohol test unless you first find that:

    1.  Defendant understood that the officer was requesting the defendant to submit to a test;

    2.  Defendant understood [he] [she] had a duty to submit to testing; and

    3.  Defendant was physically capable of complying with the testing required.

    To constitute a  refusal to submit to a chemical test the arrested motorist must exhibit conduct demonstrating that:

    1.    The motorist was capable of refusal, and 

    2.    The motorist exhibited an unwillingness to submit to the tests.

[Cf. REVISED ARIZONA JURY INSTRUCTIONS (CRIMINAL), RAJI 28.691(A) [License Suspension Or Revocation–Refusal To Submit To Test] ¶ 2 (CLE State Bar of Arizona, 1996).]

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PRACTICE NOTE: A defendant arrested for drunk driving may be required to submit to chemical testing to which the traditional 5th and 6th Amendment rights to due process and representation of counsel do not normally apply. (See McAvoy v. State (MD 1989) 551 A2d 875, 880.) However, when the defendant specifically requests counsel, it may be a due process violation to deny that request. (Ibid.)

    "Due process may not require warnings of the consequences of refusing to take a blood/alcohol test, and it may not require a full right to counsel for suspects facing the decision whether or not to submit to testing. [H]owever, as a matter of fair play and decency, due process does require that [a defendant] be given a reasonable opportunity to call his attorney before deciding on whether to be tested." (Roberts v. Maine (1st Cir. 1995) 48 F3d 1287, 1295-96.)

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    34.7.11    Defense Theory That Subsequent Consent Cures Initial Refusal Of Sobriety Test

PRACTICE NOTE: Some courts have taken the position that under certain circumstances, a motorist may subsequently ask for a test and cure the initial refusal unless the delay would materially affect the test result. (See Annotation, Driving While Intoxicated: Subsequent Consent To Sobriety Test As Affecting Initial Refusal, 28 ALR5th 459, § 4; but see Palme v. Commissioner of Public Safety (MN 1995) 541 NW2d 340, 342 [officer was not required to honor driver's consent to testing after driver's initial refusal unless subsequent consent was immediate]; Leviner v. South Carolina Dept. of Hwys. (SC 1993) 438 SE2d 246, 248 [subsequent consent should not cure an initial refusal].)

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RATIONALE: Without an explanatory instruction the jury may not adequately consider the defense theory that the defendant's injuries impaired his ability to answer questions and perform field sobriety tests.

POINTS AND AUTHORITIES: It is well recognized that physical trauma or a blow to the head may impair a person's ability to function normally. (See generally NCJIC 256.7.3.16 [Physical Trauma To Negate Mental Element Of The Charged Offense].) Hence, if the defendant suffered a head injury in an accident the jury should be instructed to consider those effects in evaluating the defendant's performance on the field sobriety tests, answers to questions, and the observations of the officer. (Cowan, Hayne, Fox, Defending DUIs in Washington (Lexis, 1999) § 16-1.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1]