Connecticut has similar laws. Refusal to take the test results in an extended period of  suspension of a driver's license. Obviously why the defendant did not want to answer the question posed at trial. While there may be an implied consent to the test in Pennsylvania...there really is not much the state can do other than to suspend the license to enforce it.

In situations in which the defendant is a third or fourth time offender and looking at some serious prison time if convicted...it makes sense to refuse the test. There is no hard evidence against him. The only evidence is the testimony of police officers as to the field sobriety test which can be picked apart on cross examination by the defense attorney. I have represented clients in a number of DWI cases.

The testimony of the cops always sounds like it comes out of a manual. I can't begin to tell you how many times I have heard to police give identical testimony at trial. Question: why did you request the defendant to take a field sobriety test...The usual BS answer: His face was flushed...there was a heavy smell of alcohol in the car...when asked to produce license, insurance card and registration he fumbled in the glove compartment while trying to produce it.

Cross examination might go something like this: Is it not true that the window/ sun roof was open when you pulled him over...so how could there be a strong smell of alcohol in the car. Was the defendant on or off any medications that would produce a flushed color or is it possible that this is the defendant's natural coloration. What do you mean by fumbling in the glove compartment...is it not possible that the documents you requested were not within easy reach of the defendant. At how many DWI trials have you offered testimony as a police officer and given the same reasons for asking the defendant to take a field sobriety test...smell of alcohol...flushed face...fumbling in the glove compartment. 

Law enforcement authorities often overstep their authority. I remember a case several years ago in which an FBI agent had lied to the defendant to obtain evidence. ..perfectly permissible in the investigatory stage of a case. On cross examination he was confronted with the fact that he had lied. When he was asked why...he responded that "He thought it would help his case." Opened the door to a lot of questions challenging his credibility..."You are a liar aren't you?". Is it not true that you routinely lie in the course of your work?" "Were you lying then , or are you lying now?". "Is it not true that you make rank by the number of collars and convictions you obtain" " How long have you been in your present position?" "What is your annual income?"

In such cases the prosecutor is free to ask the court to instruct the jurors that they may draw a negative inference from the defendant's refusal to take the test. However, this may be overcome by a reasonable explanation by the defendant as to why he refused the test. In the case at bar the defendant refused the breathalyser test because he wanted a blood test. Very wise ploy on his part. The police had no one present at the time to administer a blood test, and relied on the fact that they have the right to determine which test to administer...breath, blood or urine. In the case at bar it backfired against them.

 

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