Jury Instructions in Refusal Cases

A driver arrested for DUI / DWI in California is required by law to take a chemical test to determine blood alcohol content (BAC). Any driver who refuses to take a chemical test faces stiff consequences both at the DMV and at trial. In drunk driving trials, juries are given specific instructions on how to consider chemical test refusals.

Prosecutors typically use refusals as evidence of consciousness of guilt in driving under the influence cases. This type of tactic is necessary because the prosecutor doesn't have any actual evidence showing the driver's BAC. The typical argument is that the person arrested for DUI / DWI must have been drunk, or he or she would have agreed to a chemical test.

This prosecutorial strategy isn't always effective. If jurors hear a valid reason for the refusal, such as injury, inability, or a desire to speak to a lawyer first, they often excuse the refusal. Because of this, prosecutors lose more refusal cases than any other type of DUI / DWI case. The skilled defense lawyers at The Kavinoky Law Firm can help defendants who refused chemical tests plan a strategy to convince a jury to excuse the refusal.

The California Jury Instructions (CALJIC) addresses refusals specifically:

• The law requires that any driver who has been lawfully arrested submit to a chemical test at the request of a peace officer who has reasonable cause to believe that the person arrested was driving under the influence.
• If the defendant refused to submit to such a test after a peace officer asked (him/her) to do so and explained the test's nature to the defendant, then the defendant's conduct may show that (he/she) was aware of (his/her) guilt. If you, the jury conclude that the defendant refused to submit to such a test, it is up to you to decide the meaning and importance of the refusal. However, evidence that the defendant refused to submit to such a test cannot prove guilt by itself.

These instructions are typically read to jurors preparing to deliberate California DUI / DWI cases. CALJIC also addresses the enhancement of punishment in a refusal case, even though the jury is told that they cannot be concerned with penalty or punishment in a DUI case:

• Driving under the influence or with a blood alcohol level of 0.08 percent or more AND failure to submit to or complete a test will result in suspension of (his/her) driving privilege for one year or revocation of (his/her) driving privilege for two or three years.

As the instructions make clear, jurors must decide for themselves whether a driver's refusal of a chemical test constitutes consciousness of guilt, and whether it can be excused. There may be a valid reason for a refusal that can be excused, and help to minimize or even eliminate the consequences of a drunk driving case. A qualified California lawyer who focuses on DUI / DWI defense will thoroughly evaluate a refusal to determine whether a valid reason existed to decline a chemical test.