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Refusal to submit to blood alcohol test. The most damaging result of a refusal to submit to a chemical test is usually not the suspension or revocation of the client's driver's license but rather the effect that the fact of refusal will have on a trial, for certainly any jury will draw from a refusal the adverse inference of consciousness of guilt - that is, that the defendant refused to submit to a chemical test because he knew the results would reflect the many drinks he had taken. And any exculpatory explanation by the defendant of why he failed to take the test may be dampened by an instruction from the court to the effect that the refusal may be viewed as evidencing a consciousness of guilt.
Legal Counsel, then, must attempt vigorously to suppress evidence of the refusal, preferably during pre-trial procedures but, in any event, outside of the hearing of the jury and before any mention concerning the refusal is made by the prosecutor. Generally, there are three possible avenues of attack in attempting a suppression: statutory provisions, constitutional considerations, and foundational defects (relevance) and arguments. Counsel may also wish to argue that the words or conduct of the client did not legally amount to a refusal and therefore is irrelevant.
In a few states, legislation specifically directed toward the issue authorizes the introduction into evidence of the fact of refusal. (See, e.g., Iowa Code §321 B11 (Acts 1969, 63 G.A. Ch. 205, §10, eff. July 1969). In others, such as Maryland, the relevant statute establishes the opposite position: The failure of the defendant to submit to chemical testing can neither be offered as evidence nor be commented upon. (See, e.g., Maryland Ann. Code, Art. 35, §100 cc (1969 Ch. 157)).
In those states without such legislation - and even, in appropriate circumstances, in states having such legislation - counsel should consider arguing that the introduction of evidence of refusal constitutes a denial of the defendant's constitutional rights. Specifically, admission of the fact of refusal amounts to a violation of the Fifth Amendment privilege against self-incrimination.
Whether evidence of refusal is a violation of the privilege will probably hinge on whether it is considered "testimonial" or "physical" evidence in nature. The courts have been fairly uniform in ruling that communicative or testimonial evidence is protected by the Fifth Amendment, while physical evidence is not.
The issue of whether the testing of body chemistry falls within the communicative or physical category was resolved in Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826 (1966), wherein the Supreme Court held that the results of a blood test taken over the suspect's objections were admissible, "[s]ince the blood test evidence, although an incriminating product of compulsion, was neither petitioner's testimony nor evidence relating to some communicative act or writing by the petitioner..."
The question remains, however, of whether the refusal to submit to chemical testing is admissible. It would seem that a refusal, unlike the chemical test result itself is communicative rather than physical in nature.
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