In some counties, such as Albany where I practice frequently, no plea bargains or reduced charge will be offered to the motorist that refuses. (You can read more about refusal cases here.) Also, be aware that the test refusal I am referring to in this post is the chemical test that is given at the police station, not the little device used on the roadside. That device is called a Preliminary Breath Test and the consequences of refusing that test is a traffic ticket.This post will address the issue of taking a refusal case to trial before a jury and the complications that come with it.
A bedrock principle of our criminal justice system has always been that a defendant will not be forced to incriminate himself. A defendant has the right to remain silent and that silence may not be used against him as evidence of guilt at trial. Many a mis-trial has occurred because of inappropriate comments made by a prosecutor to a jury with regard to a defendant's decision to not take the stand. The burden is on the government to prove its case beyond a reasonable doubt. The defendant is presumed to be innocent until the jury decides he is guilty. The presumption of innocence lasts throughout the trial. This right however, as with many other Constitutional rights, is sadly eroding thanks to the US Supreme Court. (In Salinas v. Texas the Court held that silence in response to police questioning is admissible at trial unless the defendant specifically invokes the right, or communicates to the police that he or she is invoking the 5th amendment privilege to not communicate. So now average Joe needs to have a full understanding of his Constitutional rights before they can be applied to him?)
One of the most important principles a juror must understand is that they are absolutely forbidden from holding a defendant's decision not testify at trial against him. This principle is fully discussed and explained during jury selection and before the jury gets the case to deliberate. A lawyer will always get someone during jury selection who honestly admits that if the defendant does not testify, they will presume guilt. This prospective juror is actually helpful during jury selection because his candor usually sparks a conversation that encourages a jury panel to think really hard about their ability to not use silence as evidence of guilt.
You can talk about the right to remain silent, the presumption of innocence, the burden of proof, and the importance of these principles as being fundamental to our system of justice until you are blue in the face. But the fact of the matter is that expecting a juror to completely embrace a legal principle that is inherently illogical is fantasy. Because everyone believes that if a person has nothing to hide and did nothing wrong, then why wouldn't they say so to the police or at trial? If the trial lawyer fails to provide the jury with an innocent explanation for the defendant's silence the case is in jeopardy.
With the above in mind, there is no other trial where the defendant's silence is more significant than a DWI refusal trial. That is because at the close of the trial, when the judge is instructing the jury before deliberations, the judge will tell the jurors that if the defendant failed to provide an innocent explanation for refusing, they are allowed to presume the defendant refused because he was conscious of his guilt. In other words, the defendant knew he was intoxicated or impaired.
Here is the sample jury instruction that a judge will read:
Under our law, if a person has been given clear and unequivocal warning of the consequences of refusing to submit to a chemical test and persists in refusing to submit to such chemical test and does not give an innocent explanation for such refusal, then the jury may, but is not required to, infer that the defendant refused to submit to a chemical test because he or she feared that the test would disclose evidence of the presence of alcohol in violation of law.
This instruction simply frightens me. It completely shifts the burden of proof to the defendant by forcing him to prove his innocence. But the courts so far have dismissed the many challenges to this instruction by analogizing a chemical test refusal to a defendant who flees from police or escapes custody.
One of the first cases I tried was a refusal case. I was pretty fresh out of law school and my head was still filled with the glorious fantasy of constitutional rights and their application in court. The case was a typical DWI case. There was no accident or any other aggravating circumstances. But because of the refusal, the offer from the DA was to plead guilty to the charge, not much of an offer at all. I knew my client would not testify. But I foolishly believed there was no way the judge would tell the jury to hold my client's decision against him. I was wrong. And despite my efforts to create many reasons to doubt my client's guilt, I knew it was over the minute the refusal instruction was given to the jury. I still feel pretty burned by that judge. Knowing I was inexperienced at the time you think he could have thrown me a bone when we told him we were not calling any witnesses. He knew it was over at that point.
So what it comes down to is that at a DWI refusal trial, you have to put your guy on the stand. After all, if he stays silent and does not explain why he refused (other than being totally shit faced) you will probably lose. My most recent trial involved a client who really knew what she was doing the night she was arrested. There was essentially no evidence against her. There were no admissions, no field sobriety tests, no preliminary breath test, no obvious signs of intoxication other than the always noted "glassy eyes" and "odor of alcohol". We had an innocent explanation for the odor. My client spilled beer all over her clothes right before she left work at a restaurant. The case sucked for the prosecutor. I could not believe they wouldn't give me a plea bargain. I would have taken it. But what they did have was a refusal. So instead of my defense involving the usual aspects of DWI defense such as attacking the science and technology of field testing and breath testing and getting in evidence of sobriety, my defense theory rested almost entirely on explaining to and effectively convincing the jury that my client's explanation for refusing was an innocent one. The burden of proof in this case rested on the defense. Incredible. (That trial ended before it started. We were about to begin jury selection when the prosecutor got a message from his boss to give us a deal.)
What could possibly be an innocent explanation for refusing? How about this one - A lawyer told you not to do the test. Well, why would a lawyer tell you not to do the test if you were not drunk? Well some people still think lawyers are experts about the law and will do whatever a lawyer tells them to. If your doctor tells you to do something you do it right? You trust his experience. Well my client above talked to a lawyer and he said don't do the test. I don't know why he told her not to do it. It only mattered that he did and being in a position of trust, my client took his advice.
I am very uncomfortable giving out this kind of advice to someone. First of all, this person calling me in the middle of the night is not my client. And will most likely not become my client because I am now a witness. And there are so many variables to consider and too much information required to give someone good advice. But the police have to let a suspect attempt to reach a lawyer before they make the decision as long as the call does not unduly interfere with the investigation. Failure to allow the suspect to attempt to reach a lawyer can result in the suppression of the test refusal evidence. So if someone is thinking of refusing, it would behoove them to call a lawyer before doing so. It can be an innocent explanation.
Why else would someone refuse to blow other than the consciousness of guilt? Well the police told them they had the right to remain silent when they were arrested. Some folks innocently believe that the right extends to refusing to give up their breath and that refusing can't be held against them at trial. Yes, the police do inform a suspect that their refusal can be used against them at trial. But most people really can't comprehend the true meaning of this warning.
Here is a copy of the warnings the police read to a suspect with regard to the chemical test:
You can see from the warning that it doesn't exactly explain that a judge will tell a jury that refusal means the defendant knew he or she was guilty, does it?
Some folks are just simply scared out of their minds and don't trust technology. Why wouldn't anyone trust a breath test device? Maybe it is because they read the news and are familiar with the many stories of inaccurate tests done on crappy machines that produce false positives. The stories about problems with breath testing machines are plentiful.
http://www.rutlandherald.com/article/20110514/NEWS03/705149955/1004/NEWS03
http://www.hgexperts.com/article.asp?id=5739
http://www.kptv.com/story/23448649/reliability-of-breathalyzer-machine-called-into-question
So even though a test result is not part of the evidence at a refusal trial, the defense must discuss the topic of breath testing technology with the jury. The jury must be made aware that breath testing devices are machines that often don't do a very good job and should not be trusted for mechanical and many other reasons that I will save for another post.
So as you can see from above, the courts have created a huge exception to the Constitution in the context of DWI refusal trials. The courts pretty much admit to doing so, but justify their jurisprudence on the need to protect motorist from drunk drivers.
Thanks for reading!
1 comment:
Thanks for taking the time to share this informative post about DWI's. There were some incredible points you made in your post. Have a wonderful rest of your weekend and keep up the posts.
Lawyer Philadelphia
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