Refusal to take a BAC test as evidence of guilt

While it may be a good idea to refuse to take the test back at the station if you think that you are going to flunk it, or if you think you might test over the .170 standard which will necessitate a mandatory three days in jail, the prosecutor is going to introduce your refusal to test into evidence against you in a DUI case. Many defendants in this situation have argued that they have a Fifth Amendment right not to have such a refusal used against them. But these arguments have fallen on deaf ears in Ohio.

The refusal to submit to a breath test is relevant, admissible, and may be used against a defendant at trial. South Dakota v. Neville (1983), 4559 U.S. 553; Maumee v. Anistik (1994), 69 Ohio St.3d 339. As the Ohio Supreme Court explained in Anistik:

“Where a defendant is being accused of intoxication and is not intoxicated, the taking of a reasonably reliable chemical test for intoxication should establish that he is not intoxicated. On the other hand, if he is intoxicated, the taking of such a test will probably establish that he is intoxicated. Thus, if he is not intoxicated, such a test will provide evidence for him; but, if he is intoxicated, the test will provide evidence against him. Thus, it is reasonable to infer that a refusal to take such a test indicates the defendant’s fear of the results of the test and his consciousness of guilt, especially where he is asked his reason for such refusal and he gives no reason which would indicate that his refusal had no relation to such consciousness of guilt.” Anistick at 343 citing Westerville v. Cunningham (1968), 15 Ohio St.2d 121 at 122.

The reason that this does not violate the Fifth Amendment right against self-incrimination is that the Fifth Amendment only applies to testimonial evidence against the person. It does not apply to physical evidence such as fingerprints or measurements of blood alcohol.

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