The Right to Refuse: No Longer can the Exercise of your Right be Used Against You

The Right to Refuse: No Longer can the Exercise of your Right be Used Against You

The Right to Refuse: No Longer can the Exercise of your Right be Used Against You


In the world of DUI, the Constitution has slowly been eroded, or rather there have been numerous and consistent "exceptions" allowed. Meaning, because the issue before the Courts has been raised in the context of a DUI arrest and litigation, issues that would traditionally be suppressed or excluded due to the Constitution forbidding them, have been allowed.

Take for example the right to remain silent. This means an accused person can freely say "no thanks" to testifying in his/her criminal trial and that right to do so cannot be used against them. The prosecution is prohibited from arguing that they have something to hide, that an innocent person would want to be heard, and so on. In fact there is a specific jury instruction that tells the jury to not consider an accused silence.

The right to refuse a search of you by way of roadside sobriety tests, and the right to refuse a breath sample are two examples of the suspension of the Constitution when a driver chooses to exercise the right to be free of such a search and refusing to give consent to be search. Until recently, the exercise of this right was fair game for the prosecutor to highlight the refusal, to argue "consciousness of guilt."

They did do with the full authority of the Courts authorizing this due to case decided that permitted these arguments.

Related Podcast: Saying No to a Breath Test Does not Equate to Guilt in a Court of Law

In City of Seattle v. Stalsbroten, 138 Wn.2d 227, 978 P.3d 1059 (1999), the Court again addressed the admissibility of refusal evidence, ruling that the refusal to perform FSTs was not testimonial and not compelled, and thus not protected by the right against self-incrimination)—therefore a refusal to perform roadside sobriety tests were fully admissible in a DUI trial.

In State v. Long, 113 Wn.2d 266, 272, 778 P.2d 1027 (1989)—the right to refuse a breath test is fully admissible in a DUI trial and there is no prohibition on arguing consciousness of guilt due to the court writing: "The legislative determination that refusal evidence is relevant and fully admissible to infer guilt or innocence thus now seems clear."

The problem with these cases above was the manner I which the Courts were analyzing them. They were not being contested nor analyzed under the 4th Amendment; rather they were being addressed as a 5th Amendment. The difference is: one is a right to refuse searches; the other is the right to remain silent. Different facts and issues raised lead to different conclusions.  It was not until recently when the issue became "ripe" for the Appeal Court to visit the issue of a search and the right to refuse. It was not a DUI case, but the issue of searching is in fact identical.

These traditional rules and notions regarding the use of refusal evidence in any case, can no longer stand in the wake of an April 2013 case decided by the Washington Court Of Appeals: State v. Gauthier, 174 Wn. App. 257, 298 P.3d 126 (2013).

Like any search, and reaffirmed by Gauthier we first must determine whether a search has occurred. The case law is clear on this for DUI cases: Roadside sobriety tests and a breath test are in fact searches. The next question is whether there is an ax exception. There being 3: Consent to the search; A warrant to search; or an Emergency circumstance the eliminates the luxury of obtaining a warrant pre-search.

The rule is that "the government bears the burden of proving an exception to the warrant requirement." Once a case establishes that a search or seizure has occurred by the request for a sobriety test, or breath or blood test, the prosecution must establish some legal justification for that request that satisfies both the Fourth Amendment and Article 1, section 7 of WA Constitution.

In Gauthier the court ruled that in circumstances where a defendant had a constitutional right to refuse consent to providing a DNA sample, the State’s introduction of the evidence of his refusal and its argument that the refusal was evidence of his guilt violated the defendant’s state and federal constitutional rights. In addressing the issue of Fourth Amendment application, the Court held:

A blood test or cheek swab to procure DNA evidence constitutes a search and seizure under the Fourth Amendment and article I, section 7 of the Washington Constitution. State v. Garcia–Salgado, 170 Wash.2d 176, 184, 240 P.3d 153 (2010); State v. Curran, 116 Wash.2d 174, 184, 804 P.2d 558 (1991), overruled on other grounds by State v. Berlin, 133 Wash.2d 541, 947 P.2d 700 (1997). Because taking a DNA sample constitutes a search, a warrant or court order is first required. Garcia–Salgado, 170 Wash.2d at 184, 186, 240 P.3d 153. As a result, individuals have a constitutional right to refuse consent to warrantless sampling of their DNA. See Schneckloth v. Bustamonte, 412 U.S. 218, 228, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Morse, 156 Wash.2d 1, 13, 123 P.3d 832 (2005).

The request to provide a DNA sample is not constitutionally different from a request to provide evidence via roadside sobriety testing, breath or blood sample.  This is because ALL scenarios are a search. As a result the analysis is based on the Fourth Amendment.

In reaching their conclusion in Gauthier the court reminded us all of the case of United States v. Prescott, 581 F.3d 1343 (9th Cir. 1978). In that case a suspect refused entry in the home absent a warrant to enter and search the home. The highest court in this nation disallowed evidence that the defendant refused consent to search, giving a variety of reasons why such evidence should not be admitted as substantive evidence, and ultimately wrote: "if the government could use such refusal against an individual, it would place an unfair and impermissible burden upon the assertion of a constitutional right."

While the Prescott court analogized the right to remain silent as an example to highlight the problem with using refusal evidence it was only an example and that it was the exercise of a constitutional right, and as such cannot be used against a person.

Since Gauthier, facts of each case continue to dictate how the issue is ruled upon by each judge in their respective courts, but more often than not, when the issues of sobriety test refusals and breath test refusals, and blood tests refusals, the evidence in the form of a "refusal" to allow the searches has been suppressed.

DUI cases are finally being treated as any criminal charge. The bigger question is how long will this trend last?  Will we return to constitutional exceptions in the name of public safety but at the expense of the protection of rights? Only time will tell.