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When is a Refusal Not a Refusal?

By Lawrence Taylor

When a DUI suspect is arrested, he is asked to submit to a blood, breath or urine test. If he refuses, his license will be suspended ? for a considerably longer time than if a test had shown .08% or higher. In addition, many states impose an increased penalty in the criminal phase, usually a mandatory jail sentence; some states make refusal a crime independent of the underlying DUI. Finally, the fact of refusing can be used as evidence of ?consciousness of guilt? in trial ? a practice which has been held by the U.S. Supreme Court not to be a violation of the Fifth Amendment right against self-incrimination. (See my earlier post, ?Believing You Have Constitutional Rights in a DUI Case Can be Dangerous?.) The reason for harsher treatment is, of course, to encourage suspects to provide evidence considerably more reliable than an officer?s opinion: it is the evidence that is desired, more than a desire to punish for not cooperating...continue to full post

Full post as published by DUI Blog on January 29, 2008 (boomark / email).