A driver arrested on suspicion of DUI / DWI who refuses to take a chemical test as required by California law faces consequences both at the Department of Motor Vehicles (DMV) and at trial. In drunk driving trials, juries are given specific instructions on how to consider chemical test refusals.
During a trial, a prosecutor likely will try to use a refusal to show consciousness of guilt. Because the prosecutor doesn’t have any actual evidence showing what the person’s blood alcohol level was at the time of driving, the prosecutor must resort to this tactic. The typical argument is that the person arrested for DUI / DWI must have been drunk, or he or she would have agreed to a chemical test.
While this does work for the prosecutor at times, if jurors hear any valid reason for the refusal, such as injury, inability, or a desire to speak to a lawyer first, they often excuse the refusal. Due to this, prosecutors lose more refusal cases that any other type of DUI / DWI case. With the help of an attorney experienced at defending drunk driving cases, a defendant who refused a chemical test can plan a strategy to convince a jury to excuse the refusal.
The specific instructions were given to juries, from the California Jury Instruction (CALJIC) on refusals, state that:
- The law requires that any driver who has been lawfully arrested submit to a chemical test at the request of a peace officer who has reasonable cause to believe that the person arrested was driving under the influence.
- If the defendant refused to submit to such a test after a peace officer asked (him/her) to do so and explained the test’s nature to the defendant, then the defendant’s conduct may show that (he/she) was aware of (his/her) guilt.
- If you conclude that the defendant refused to submit to such a test, it is up to you to decide the meaning and importance of the refusal. However, evidence that the defendant refused to submit to such a test cannot prove guilt by itself.
This is often read to jurors before they deliberate on the DUI / DWI case at trial. Further, CALJIC addresses the enhancement of punishment in a refusal case, although the jury is specifically told that they are not to be concerned with penalty or punishment in a DUI case:
Driving under the influence or with a blood alcohol level of 0.08 percent or more AND failure to submit to or complete a test will result in suspension of (his/her) driving privilege for one year or revocation of (his/her) driving privilege for two or three years.
As the instructions make clear, it’s up to the jury to decide whether a refusal constitutes consciousness of guilt and whether it can be excused. There may be valid reasons for a refusal that the defendant in a drunk driving case is unaware. A qualified lawyer who specializes in DUI / DWI cases can evaluate each case involving a refusal to determine whether a valid reason existed to decline a chemical test.