Archive for January 29th, 2008

When is a Refusal Not a Refusal?

Tuesday, January 29th, 2008

When a DUI suspect is arrested, he is asked to submit to a blood, breath or urine test. If he refuses, his license will be suspended — for a considerably longer time than if a test had shown .08% or higher. In addition, many states impose an increased penalty in the criminal phase, usually a mandatory jail sentence; some states make refusal a crime independent of the underlying DUI.

Finally, the fact of refusing can be used as evidence of “consciousness of guilt” in trial — a practice which has been held by the U.S. Supreme Court not to be a violation of the Fifth Amendment right against self-incrimination. (See my earlier post, “Believing You Have Constitutional Rights in a DUI Case Can be Dangerous”.)

The reason for harsher treatment is, of course, to encourage suspects to provide evidence considerably more reliable than an officer’s opinion: it is the evidence that is desired, more than a desire to punish for not cooperating. It would follow, of course, that if a suspect changes his mind and agrees to provide a blood, breath or urine sample — what is referred to as “curing” the refusal — there would be no penalties.

Wrong — in most states. A summary of the situation was presented by a New Jersey appellate court where the defendant had initially refused to take a breath test until he could speak with his attorney:

We have been referred to various out-of-state decisions in the briefs of counsel. The majority rule in those cases which have an implied consent statute like ours….is that the initial refusal is final and hence that there is no right to “cure” an initial refusal… The cases expressing the majority view essentially turn on the question of the unreasonableness of having police officers turn aside from other duties to administer a test after the driver has initially refused. The cases allowing a “cure” generally do so on the basis that a change of mind after a relatively short delay does not prejudice the presentation of the state’s evidence nor defeat the purpose of the implied consent statute. State v. Corrado, 446 A.2d 1229.

The New Jersey court decided to follow the majority approach. A Florida appellate court, however, chose the opposite view:

The subsequent consent to take the test cures the first refusal when the request to take the first test is made within a reasonable time after the the prior first refusal…. By approving a flexible rule we believe that this important evidence will be more frequently available and therefore the prophylactic purpose of the implied consent law will be achieved. Larmer v. State, 522 So.2d 941.

The disagreement, of course, reflects two very different underlying philosophies: Which is more important — obtaining key evidence or punishing non-cooperation? The minority recognizes that actual evidence of blood-alcohol concentration is crucial; the majority prefers to focus on deterring future suspects from refusing. Which is the “correct” view?

As usual, California has adopted its own unique approach: If a suspect refuses, he can be physically restrained and a blood sample forcefully taken from him — and he will be charged with a refusal as well.

Share