Test Refusal

A significant issue affecting sentencing is the problem of implied consent BAC test refusal. When an offender refuses to consent to a blood alcohol concentration test, he or she deprives the court of evidence necessary to prove the offender was driving drunk. A 2002 survey reported 73 percent of prosecutors considered a BAC the single most convincing piece of evidence in a jury trial, and 92 percent of prosecutors reported test refusal was more common among repeat offenders. A companion study on judges found 73 percent of judges surveyed believe evidence of a refusal should be admissible at trial, and 47 percent believed it should be admissible during sentencing (Robertson and Simpson 2002).

Even if an offender refuses to be tested, he or she can still be brought to trial for a DWI offense. However, prosecution is more difficult and relies on an officer’s observation and testimony. Four states — Hawaii, Massachusetts, Rhode Island and Oregon — do not allow information concerning test refusal to be presented in court. Because evidence in DWI trials is so complex, it is often the chemical test result that provides the most compelling case for conviction. Hardcore drunk driving offenders who refuse the test are often trying to circumvent the system. For a more in-depth discussion, see test refusal in the Swift Identification section.