Refusal of Chemical Testing
If after being requested to submit to testing, the
driver opts not to take a breath, blood or urine test, or the person
is unable to submit to one of these tests, he or she will be considered
to have refused the test. A person's inability to blow hard enough
or otherwise complete a test may be considered a refusal. Refusing
a test can have serious consequences in terms of a person's driver's
license and driving record which will be discussed later. However,
a refusal does little to hurt a driver in the criminal case. Indeed,
refusing a test may be used by the prosecutor as evidence against
a person at trial in an attempt to demonstrate a guilty conscience,
but a skillful trial attorney should be able to nullify such an
inference and explain why a person might want to refuse a test.
A refusal may be a positive in a criminal case because there is
no way to prove that a person was over the legal limit of .08. Thus,
the prosecutor must prove that a person was driving while under
the influence to a degree which rendered her incapable of safely
operating the vehicle. A refusal knocks out the prosecution's strongest
evidence. However, many people are prosecuted and convicted despite
the absence of a test.
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