When is a Refusal Not a Refusal?

When a DWI suspect is arrested, they are asked to submit to blood, breath, or urine tests. If the suspect refuses, they can be convicted of refusing the chemical test in addition to DWI.  For a first offense refusal, penalties include a license suspension for seven months to one year.  Additionally, the fact of refusing can be used as evidence of “consciousness of guilt” in trial — a practice which has been held by the U.S. Supreme Court not to be a violation of the Fifth Amendment right against self-incrimination.

The reason for the harsher treatment is, of course, to encourage suspects to provide evidence considerably more reliable than an officer’s opinion.  It is the evidence that is desired, more than a desire to punish for not cooperating.  It would follow then, of course, that if a suspect changes his mind and agrees to provide a blood, breath, or urine sample — or what is referred to as “curing” the refusal — there would be no penalties.  Wrong.  At least in New Jersey as well as most other states.  A summary of the situation was presented by a New Jersey appellate court in State v. Corrado, where the defendant had initially refused to take a breath test until he could speak with his attorney.  The court held that the initial refusal is final and hence that there is no right to “cure” an initial refusal. The case essentially turned on the question of the unreasonableness of having police officers turn aside from other duties to administer a test after the driver has initially refused.

The minority view, on the other hand, holds that a subsequent consent to take the test cures the first refusal when the request to take the first test is made within a reasonable time after the prior first refusal.  By approving a flexible rule, this important evidence will be more frequently available and therefore the overall purpose of the implied consent law will be achieved.

The disagreement between the majority and minority positions reflects two very different underlying philosophies: Which is more important, obtaining key evidence or punishing non-cooperation? The minority recognizes that actual evidence of blood-alcohol concentration is crucial while the majority prefers to focus on deterring future suspects from refusing.