Refusal to Submit to a Chemical Test: Whether Refusing Really Counts as a Refusal
![handle is hein.journals/jfku7 and id is 51 raw text is: CHEMICAL TEST REFUSAL
REFUSAL TO SUBMIT TO A CHEMICAL TEST:
WHETHER REFUSING REALLY COUNTS AS A
REFUSAL
John M Farrell, Esq.*
I. INTRODUCTION
A driver arrested for driving under the influence refused to allow a disheveled
medical technician draw blood because of fear of contracting AIDS. At a Department
of Motor Vehicles (DMV) administrative hearing, the driver argued that he refused
the test because he concluded that someone so sloppy and unprofessional looking
might well be careless with needles and infect him with a dirty needle. The court
agreed, concluding that the driver had a legitimate reason for refusing the test.
This case is but one of the most recent attempt by a defendant to avoid the
consequences of refusing to take a chemical test. It is becoming more common for
people suspected of driving under the influence to refuse to submit to a chemical test.
When their license is suspended and they are charged with driving under the influence,
these defendants argue that they had a good reason for refusing, that their refusal was
not a knowing refusal and thus should not count against them.
There are great rewards when a driver is able to explain away the refusal to
take a test. In many cases where there are no test results, the prosecutor may not
obtain a guilty verdict unless able to argue that the defendant refused to perform a
chemical test. Without evidence of the driver's blood alcohol level, the prosecutor
often can argue only the consciousness of guilt inherent in the driver's refusal to take
a test. Indeed, many prosecutors will not charge a defendant even if they knew that
the court would excuse the defendant's refusal to take a chemical test. Finally, if
charged, in negotiating a disposition short of trial, a defendant may avoid the stiffer
penalties usually exacted on those who refused to take a chemical test.
A driver should not, however, take much comfort, for courts find most
explanations offered for a refusal to take a test wanting. This article concludes that,
while sometimes a refusal does not count as a knowing refusal, those times are
exceptions that are narrowly drawn. Courts are anxious to join in the battle against
drunk driving and strive to find that the refusal counts against the driver.
JohnA,. Farrell is a senior trial attorney for the San Francisco District Attorney's Office. He is professor of
trial advocacy at Hastings College of the Law and serves on the faculty of the National Institute of Trial
Advocacy. He lectures frequently throughout California on criminal law and trial techniques.
[Vol.7:1 1996]](ViewImageLocal?handle=hein.journals/jfku7&div=6&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
Refusal to Submit to a Chemical Test: Whether Refusing Really Counts as a Refusal
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most