Refusal to Test

At the New Prosecutor's Training Academy last week it became apparent that some prosecutors are not aware of the significance of blood or breath test refusals.

Please share with all your Sessions Court Prosecutors and Judges, who may not see jury instructions often, the jury instruction at T.P.I. Crim 38.04 "Driving under the influence: Refusal of Test" It is the statement of law read to jurors and states with clarity Tennessee law.

It states:" If you find from the proof that the defendant was offered and refused to submit to a test for the purposes of determining the alcohol or drug content of his/her blood and that the law enforcement officer advised the defendant that the refusal to submit to such a test will result in the suspension of his/her operator's license, then such refusal is not sufficient standing alone and by itself to establish the guilt of the defendant, but it is a fact which, if proved, may be considered by you in light of all the other provided facts in deciding whether the defendant is guilty or not guilty. The weight to which such a circumstance is entitled and whether or not such conduct shows a consciousness of guilt are matters for your determination."

In every case the refusal should be used as evidence of consciousness of guilt. Failure to use this evidence is ridiculous. Is there any legitimate reason for a person to surrender a driver's license for a year other than to avoid having a B.A.C. reading that could be used to prove guilt.
If someone is ready to trade his/her operator's license to avoid a needle, he/she is in need of immediate psychiatric help! Apparently, this was not clear to some prosecutors last week. Please get the word out to your colleagues! Thanks, Tom Kimball