Admissibility of Refusal to Submit to Blood Alcohol Test
![handle is hein.journals/novalr6 and id is 219 raw text is: Admissibility of Refusal to Submit to Blood Alcohol
Test
James C. Hauser*
Introduction
Neither the United States Supreme Court nor the Florida Su-
preme Court has yet ruled whether a defendant's refusal to take the
Blood Alcohof Test1 is admissible evidence. The legal issues involved
came into focus in Schmerber v. California,2 where the the Supreme
Court ruled that a defendant did not have a fourth or fifth amendment
right to resist the withdrawal of blood which would be tested to mea-
sure the alcoholic content of his bloodstream. Justice Brennan, speak-
ing for the majority, ruled that the results of the blood alcohol test
were not testimonial in nature and did not infringe on the defendant's
fifth amendment right not to incriminate himself.3 However, the Court
left unanswered the question of whether admission into evidence of a
defendant's refusal to submit to the blood alcohol test would violate his
fifth amendment rights.
After Schmerber, Florida's legislature passed an Implied Consent
Statute. The statute stated that any person accepting the privilege of
driving in Florida consented in advance to permit a blood test if he
were arrested for driving under the influence of alcohol [DUI].5 If the
alcohol level equalled or exceeded 0.10% by weight of his blood, the
defendant was presumed to be under the influence of alcohol.8 If a de-
* County Judge, Ninth Judicial Circuit of Florida; J.D. Boston University, 1973;
B.S. University of Pennsylvania Wharton School of Finance, 1970.
1. The term test, unless otherwise stated, means any and all tests given to the
defendant to determine the level of alcohol in his blood stream.
2. 384 U.S. 757 (1966).
3. Id. at 763, citing Holt v. United States, 218 U.S. 245 (1910).
4. FLA. STAT. § 322.261 (1969).
5. FLA. STAT. § 322.261(1)(a) (1979).
6. FLA. STAT. § 322.262(2)(c) (1979).](ViewImageLocal?handle=hein.journals/novalr6&div=19&collection=&method=preview&ext=.png&size=3)
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Admissibility of Refusal to Submit to Blood Alcohol Test
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