Test Refusal

Definition: A driver who refuses chemical testing for intoxication, or who has a BAC over the state limit is subject to the immediate suspension of the driver’s license and seizure of the automobile, which might be impounded (fines imposed).

Executive Summary: Most states have implied consent laws regarding test refusal, which means that upon signing for the driver’s license, drivers have automatically agreed to testing or have agreed to submit evidence to law enforcement for the determination of sobriety. Motorists must obey such laws in the state(s) where they are stopped/arrested; not the state in which the license was issued.

More Detail: Most state laws require a driver to provide a breath and/or blood sample. Yet, even if the driver is required by law to submit to testing, the testing period may not occur until an hour or more after the initial arrest. This extensive time delay can prevent an accurate BAC reading at the time of the crash or offense, yielding a lower BAC level than when they were driving. In order to avoid issues associated with test refusal, states could enact laws with stiff penalties to deter suspected drunken drivers from this practice.

Chemists and other experts can accurately calculate BAC as it existed at the time of arrest, for example, from a BAC taken later at a police station. Weight, sex, and time are used to calculate a rate of metabolism so that an expert can give a sound opinion, admissible in court of a driver’s BAC at the time of arrest.

In cases dealing with repeat offenders, the recidivist often knows of the strategy of test refusal. Refusals of these tests can present a substantial obstacle in the prosecution of suspected impaired drivers because law enforcement is prevented from obtaining important evidence during the traffic stop. This loss of evidence may cost the state the chance of a conviction. Therefore, maintaining the ability to accurately assess the driver after being stopped is a vital component in a DUI case.

Sample Legal References: One statutory approach that appears to be effective in reducing test refusal was enacted by the Nebraska legislature. Nebraska Statute §60-6,197.03 provides for virtually identical penalties for either driving under the influence (DUI) or refusing chemical testing. A refusal conviction brings mandatory fines and license revocation/impoundment and enables the sentencing court to impose probation with conditions such as evaluation, alcohol education, treatment and other conditions related to preventing recidivism. Thus, there is little or no advantage in refusing. Indeed, a defendant may actually gain more possible defenses by taking a test and thus being able to litigate the myriad of issues that can arise with respect to a breath testing apparatus. The Nebraska refusal statute’s criminal penalties are in addition to separate administrative license revocation (ALR) sanctions, the combination of which the Nebraska appellate courts have found, do not raise constitutional double jeopardy or multiple punishment issues. See: Kenley v. Neth,271 Neb. 402, 409-411, 712 N.W.2d 251, 259 – 261(Neb., 2006).

According to a National Conference of State Legislatures’ study, in Minnesota and Vermont, the penalties for a test refusal are also equal to or substantially similar to the penalties for an impaired driving conviction. In California and Vermont, prior impaired driving convictions enhance the criminal penalties for subsequent test refusals. The effect of laws that criminalize refusal, with the same penalties applicable to impaired driving, appears to be effective as Nebraska’s refusal rate is less than seven percent.

Some states have enacted laws that permit the introduction of test refusals as evidence of guilt in an impaired driving case. See K.S.A. 8-1001 which specifically provides for the admissibility of the refusal of evidentiary breath tests at trial. See also Pennsylvania statute, 75 Pa.C.S.A & 1547,1547(e).

Many appellate courts such as the Texas Court of Criminal Appeals held that the admission in a DUI prosecution of a defendant’s uncompelled refusal to submit to a breath test does not violate the state constitutional privilege against self-incrimination. These rulings are generally based on the U.S. Supreme Court’s decision in South Dakota v. Neville, 459 U.S. 553, 566, 103 S.Ct. 916, 923, 74 L.Ed.2d 748 (1983) upholding use at trial of defendant’s refusal to provide a blood sample for DUI testing where the defendant was not warned refusal could be used against him at trial as required by state statute Id. 563-64, 103 S.Ct. at 922.

Having penalties for refusal that are equal to a drunken driving conviction has been done in Canada since 1969 and in the European Union and Australia for many years.