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Refusal of Chemical Testing
If, after being read the implied consent notice, the driver opts not to take a breath, blood or urine test, or the person is unable to submit to one of these tests, they will be considered to have refused the test. 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 within three hours of driving. 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 eliminates the prosecution's strongest evidence. However, many people are prosecuted and convicted despite the absence of a test. This is an issue which an attorney must deftly handle before a judge or jury.
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