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F 16.835 n1 Lack Of Consciousness Of Guilt Required By Due Process.
See FORECITE F 2.52h.
F 16.835 n2 Refusal To Take The Sobriety Test: Violation Of 5th Amendment.
CJ 16.835 invites the jury to consider the defendant’s refusal to take a sobriety test “in deciding whether defendant is guilty or not guilty.” However, it has been recognized that evidence (and instruction) upon the defendant’s refusal to take the sobriety test impacts the defendant’s privilege against self-incrimination. In Opinion of the Justices to Senate (92) 591 NE2d 1073, it was reasoned that “[i]n the ordinary case a prosecutor would seek to introduce refusal evidence to show, and would argue if permitted, that a defendant’s refusal is the equivalent of his statement, ‘I have had so much to drink that I know or at least suspect that I am unable to pass the test.’ [Citation.]” (591 NE2d at 1077.) The justices concluded that refusal evidence constitutes evidence of an accused’s thought process and therefore is testimonial in nature. (Id.; City of Seattle v. Stalsbroten (98) 957 P2d 260 [98 Wash.App 226]) [driver’s refusal to perform a voluntary field sobriety test is testimonial in nature and protected by Fifth Amendment].) Moreover, to compel the accused to choose between taking the sobriety test and perhaps producing potentially incriminating real evidence, and refusing to take it and have adverse testimonial evidence used against him at trial, would unconstitutionally compel an accused to furnish evidence against himself or herself. (See also Commonwealth v. Zevitas (94) 639 NE2d 1076 [418 Mass 677]; but see People v. Roberts (92) 2 C4th 271, 310-11 [6 CR2d 276] [holding that evidence and instruction on refusal to take blood test does not impact 5th Amendment]; South Dakota v. Neville (83) 459 US 553, 564 [74 LEd2d 748; 103 SCt 916] [“A refusal to take a blood-alcohol test, after a police officer has lawfully requested it, is not an act coerced by the officer, and thus is not protected by the 5th Amendment privilege against self-incrimination”].)
RESEARCH NOTE: Annotation, Admissibility in criminal case of evidence that accused refused to take test of intoxication, 26 ALR4th 1112, 1138-39, 1144-45; see also Opinion of Justices to Senate (Ma 1992) 591 NE2d 1073, 1202-06 [discussing conflict among the jurisdictions on the issue].)
(See also FORECITE F 2.06 n4.)
F 16.835 n3 Subsequent Consent To Sobriety Test As Affecting Initial Refusal.
The question of whether a motorist’s initial refusal to be tested may be cured by the motorist’s subsequent consent was addressed in Leviner v. S. Carolina Dept. Of Hwys. (93) 438 SE2d 246. Although Leviner held that the subsequent consent should not cure an initial refusal, other courts have taken the position that under certain circumstances, the motorist may ask for a test and cure the initial refusal unless the delay would materially affect the test result. (See Annotation, Driving while intoxicated: subsequent consent to sobriety test as affecting initial refusal, 28 ALR 5th 459 and Later Case Service.)
F 16.835 n4 Duress As Defense To Drunk Driving.
(See FORECITE F 4.40 n8.)
F 16.835 n5 Refusal Of Sobriety Test: No Obligation To Take Second Test.
It is error to give CJ 16.835 (Refusal Of A Chemical Test) where the person has already taken a PAS test. For briefing on this issue, see Brief Bank # B-957.