Are there criminal penalties for refusing testing? Several states are now making refusal to submit blood, urine or breath samples in a DUI-DWI a criminal act carrying criminal penalties. Some of these states only make it criminal if you are subsequently convicted of your DUI-DWI offense. Such a refusal in these states can be a criminal offense by itself, or might only enhance your punishment beyond the regular penalties if you are convicted of the underlying DUI-DWI offense and are deemed to have refused to be tested.
Whether or not criminal penalties are imposed for refusing to take a blood, urine or breath test, such refusals often badly damage your DUI-DWI case. The admission into evidence by the prosecution to undergo chemical testing is often detrimental in the eyes of a jury. The admission of your refusal of your refusal against you at trial has been held to be constitutional by the United States Supreme Court and by nearly all states. Unless satisfactorily explained, the jury will normally assume that you refused to be tested because you had consumed too much alcohol and were afraid of failing the test, an assumption that the prosecutor seldom fails to bring to the jury’s attention. Experienced DUI-DWI attorneys know ways to neutralize the impact of a refusal in the eyes of either a judge (sitting without a jury) or a jury.
In addition, in many states the admission into evidence of a chemical test refusal entitles the prosecution to a “consciousness of guilt” jury instruction stating that the jury may consider the refusal as evidence of a consciousness of guilt of drunken driving by you. In those states, knowledgeable defense counsel may also submit a counterpart to the state’s “consciousness of guilt” jury charge by submitting a “consciousness of innocence” jury charge (instruction) where you tried or offered to take some type of test, but were denied the opportunity to take a test by the officer.
Also, as a practical matter when evidence of a refusal is admitted during the prosecution’s case, it is often necessary for you to have to testify in order to effectively explain your reasons for refusing to submit. Most experienced trial lawyers handling DUI-DWI trials prefer to NOT put their clients on the witness stand. Obviously then, the admission into evidence of a chemical test refusal should be avoided by seeking its exclusion at a pre-trial motion hearing, if at all possible.
