Traffic Laws and Courts Newsletter
The newsletter of the ISBA’s Section on Traffic Laws & Courts

March 2011, vol. 20, no. 3

Defending DUI refusals in jury trial cases—Practical tips

We’ve all had those cases where the driver refuses something—denies drinking, refuses field sobriety tests, or refuses blood, breath or urine tests. When the case is set for a jury trial, how do we answer the age-old prosecutorial argument that “refusal equals consciousness of guilt”? Here are some tried-and-true tips for a refusal case to help you get those two sweetest words—‘Not Guilty’!

Each state has its own variations on the law when a driver refuses something in a DUI case. Some have jury instructions that tell the jury to infer guilt. Some states allow prior DUI’s to come in as a ‘state of mind’ exception. Some even make refusing a breath, blood or urine test its own independent crime. Obviously, a single article cannot address every nuance under state laws, but perhaps the following will guide you through them. Since I am a practicing attorney in Illinois, where appropriate, I will use Illinois law and its criminal justice system as an example.

One quick note: Even though I use the term ‘refuse or refused’ throughout this article, it might be best to replace that term with ‘decline or declined’ as frequently as possible in the actual trial. Remember that setting the tone for the trial by choosing particular language can help frame your argument and influence the jury.

Pre-trial Suppression of Refusals

In many states, a refusal to submit to a post-arrest chemical test is only admissible if the requisite implied consent warnings were first given. If they weren’t, there may be a statutory basis to suppress a chemical test refusal. Additionally, most states hold that pre-arrest field sobriety tests are voluntary. Thus, a Defendant’s refusal to participate in an investigation of himself for a crime may not be admissible. For example, refusing to consent to a search is generally inadmissible, since it is a right not to do so, and the prejudicial impact far outweighs its probative value (if there is any).1

Equally, some post-arrest sobriety tests are inadmissible unless the Defendant has been properly advised of his Miranda rights. In Pennsylvania v. Muniz,2 the U.S. Supreme Court suppressed any tests post-arrest that might reveal the thought processes of an accused, such as asking the Defendant for his sixth-year birth date. The Defendant’s response was testimonial because he was required to communicate an express or implied assertion of fact or belief. Thus, he was confronted with the "trilemma" of truth, falsity, or silence—the historical abuse against which the privilege against self-incrimination is aimed. The same may hold true for an alphabet test. Muniz otherwise held that responses to standard booking questions, and the accused’s responses as to whether he understood the instructions of other field sobriety tests, remained admissible and not subject to Miranda. Further, Muniz reaffirmed that a Defendant’s refusal to submit to a post-arrest breath, blood, or urine test is not subject to Miranda, citing South Dakota v. Neville.3

Preventing the State from Illegal Burden-shifting

No doubt, the State will try to shift the burden in refusal cases. This is illegal and unconstitutional and must be attacked at the outset. In advance of trial, obtain a ruling from the judge to prevent this tactic. As for the post-arrest alcohol test, most states allow the fact of a refusal to be admitted. However, a prosecutor's remarks during opening statement and closing argument, suggesting that the Defendant, by refusing to take a breath test, had failed to prove to the arresting officer that he was not guilty of the charged offense, are still improper.4 For example, in People v. Johnson the Illinois Supreme Court held that such remarks went beyond the legitimate purpose of arguing defendant's consciousness of guilt, blurring the distinction between the Defendant's state of mind and the state's burden of proof, and the remarks conflicted with the constitutional principle that a Defendant is innocent until proven guilty.

Selecting a jury

In a refusal case, the first opportunity to defray or diminish the impact of a refusal starts with the voir dire of potential juror. Illinois law requires that each and every individual juror acknowledge that the prosecution must prove every element beyond a reasonable doubt; that the Defendant need not present any evidence, and the Defendant is presumed innocent throughout the course of the proceedings, including deliberations. The judge will always ask each and every potential juror to affirm these principles. Thereafter comes the defense lawyer’s turn for questioning.

Defense counsel should also ask the judge to inform the jurors individually that drinking and then driving is not illegal—unless the Defendant is under the influence from drinking too much.

I like to start out by asking the first juror whether they heard the judge say these things. Then, I say, “Do you understand that over 200 years ago, real people gave their blood and their lives to give us these principles?” “Do you understand that citizens of our great country are still giving their blood and their lives (in Iraq, Afghanistan) to defend these principles?” “So, when the judge said those things, he wasn’t talking about mere TV words, these are our cornerstones of democracy?” These types of questions tell the jurors the real and present importance of these principles.

It is important to make sure these principles become embedded in each juror. “And, for the last 200-plus years, each and every juror has preserved these principles, so they could be passed along to you, today, to do the same?” “And it will be your job to apply these principles here and now, so they continue to be applied for the next 200-plus years?”

Once defense counsel has made that clear, over and over again, the next job is to hone in on the fact that a Defendant is not required to prove his innocence, and that his actual innocence is presumed to be true. “Do you understand that an accused need never provide evidence of any kind, including evidence of his own innocence, because his innocence is already presumed to be true?” “And that you can never hold that against a Defendant?” “So, if you went into that deliberation room, and were thinking, ‘I wish the Defendant had …’ you are disregarding the law and our hard fought-for rights as citizens of America?”

Next comes the burden of proof. “Do you agree to hold the line, to compel the State to prove their case beyond a reasonable doubt?” “And if they don’t, you must sign a verdict of Not Guilty?” “That if they prove the Defendant guilty a little, or a lot, but not ‘beyond a reasonable doubt’, that the only verdict you must sign is ‘Not Guilty’? “That the Not Guilty verdict covers everything from innocent to guilty but not proven beyond a reasonable doubt?”

Further: “Do you promise to force the prosecutor to prove their case right here in this courtroom today, and not fill in the blanks in the back room?” “Do you understand that you are not here to solve a crime—you are here like a referee—to determine whether the prosecutor proved the case ‘beyond a reasonable doubt?” “You are like umpires—you call balls and strikes only, based on the law of the land.”

Then, couple it all up with the presumption of innocence. “Do you understand that the Defendant is presumed to be Not Guilty, and that you must presume him to be actually innocent unless the proof is beyond a reasonable doubt?” “That everything that they fail to prove beyond a reasonable doubt, is in fact to be presumed as actual innocence?” “Do you understand that, by default, your pen is sitting on the Not Guilty verdict, unless they prove otherwise beyond a reasonable doubt?”

Now, explain how they can be proud of a Not Guilty verdict. “You, as jurors, having inherited these principles, can be proud to sign a Not Guilty verdict, even in the worst of circumstances, because it means you have upheld the principles of law that our founding fathers died for and the judge has told you to apply?”

Sadly, some states do not allow the defense to question jurors. However, most of even those states allow the defense to at least submit questions for the judge to ask potential jurors. Don’t let the judge just ask the standard one-and-out presumption and proof questions, if at all possible. And, of course, experienced defense counsel will have prepared these questions to fit right in to closing argument as well.

Gary Trichter, a well-known Texas DWI Attorney, suggests that you ask jurors whether they can think of reasons innocent people would refuse breath tests.

Opening Statement

Along with the other specifics of your case, try to ‘weave in’ your refusal defenses. First of all, take the wind out of the prosecutor’s sails, and tell the jury that the Defendant said no. Say it loud and proud, looking at them as if they already know that it is every citizen’s right to do so, especially when they are innocent and the government is trying to make a case out of whole cloth. Tell them that there was no reason for the Defendant to have to prove his own innocence, or to risk that by doing so, some police officer could or would misinterpret the facts to his benefit, etc.

The Trial

Frequently, the first (and perhaps only) witness called by the prosecution is the arresting officer. Use him to re-affirm the principles of law in the United States that you have prepared the jury for in your voir dire. Let’s say the defendant denied drinking at all, or denied and then admitted. Ask the officer the following:

Q: So, officer, it isn’t illegal to drink and then drive is it?

Q: And a driver, innocent of any crime, is never required to answer your questions, is he?

Q: You held the Defendant’s right not to give evidence against him, didn’t you?

Q: You arrested him for exercising one of his god-given rights as a U.S. Citizen?

No one is going to put a bumper sticker on their car that says “I drink and drive,” even if it is legal to do so. An innocent driver would not want to spend thousands of dollars in court to prove he is Not Guilty—and that’s why John Doe said no.

The same principles apply to the refusal to submit to field sobriety tests. Set out the fact that there are error rates for these tests, even when they are given to perfectly healthy people, of up to 35% (i.e. One Leg Stand).

Q: Why should an innocent person take a 35% risk that he could be wrongfully accused of a DUI, officer?

Q: (sarcastically) I suppose you made it clear to him that the test was 100% accurate, so it would never subject someone to a wrongful arrest?

Q: You say he refused the ‘tests’, but you never specifically identified the actual tests that you wanted him to perform, nor did you reassure him that these tests are of the utmost accuracy?

Q: You wanted him to do these tests so you could determine if he was under the influence, and since you did not gain evidence of either his innocence or his possible guilt, you arrested him anyway?

Q: (foreshadowing the prosecutor’s consciousness of guilt argument) So, officer could you tell that he had a guilty mind? You can’t read minds, can you?

Obviously, every defense lawyer’s individual style and manner of questioning the officer might need to be less sharp or pointed than the above questions, but a line of questioning in these areas helps build your theme into your closing argument.

Refusing Blood, Breath, or Urine Testing

The United States Supreme Court has held that forced alcohol testing, when supported by probable cause to arrest, does not violate the U.S. Constitution.5 The majority of states have followed this ruling. In states where there is a right to refuse, this line of questioning will not apply. But when the officer gives a person the option to refuse in a state where forced alcohol testing is allowed, take advantage. Here’s a possible colloquy:

Q: Officer, you gave my client two options: submit or refuse, correct?

Q: When my client exercised the option of refusing that you gave him, you never told him that 6 months later, the government’s lawyer might tell a jury that by declining the tests it means that he’s guilty of a crime?

Q: In fact, do you still agree that no person can be compelled to give evidence?

Q: That no person must prove his own innocence?

Q: That the government must prove a man guilty beyond a reasonable doubt?

Q: Where in this vehicle code does it say that it is illegal to drink and then drive with a guilty conscience, even if you are not, in fact, under the influence?

Reversing the Consciousness of Guilt Argument

Here’s how to turn forced alcohol testing laws into your favor when a Defendant refuses:

Q: Officer, you were trained in DUI?

Q: And part of that training told you that one can predict a blood alcohol concentration based on the number of drinks a person has, over a certain timeframe, with a certain body weight?

Q: And that was specialized training, beyond what an ordinary person might know (pointing to your ordinary defendant)?

Q: And so, you knew that my client weighed “X” pounds from his license, and he told you he had ‘X’ drinks, over a time period from ‘X’ to ‘X’?

Q: And with that in mind, rather than obtain the actual blood alcohol concentration of my client, you were satisfied with just marking it down that the defendant declined?

Q: And you understand that it is your job to collect all evidence that is necessary to prove someone guilty of a crime, if you know it exists and would actually prove it beyond a reasonable doubt?

Q: Wouldn’t you be subject to embarrassment or ridicule in your department if a person that you had already accused of the crime of DUI, turned out to be at a .04? Wouldn’t you be personally better off with a so-called refusal under those circumstances? Are you sure that your body language, even subconsciously, wasn’t sending signals to my client to decline?

The point here is that you can argue that the failure to collect is a failure of proof. Or, that the officer wasn’t sure that the Defendant was over the limit, and so he was ‘better off’ with a refusal. Or, that the officer was not doing his job correctly, etc.

If you are allowed to, take out the chart which would show that your client’s information would have resulted in a BAC of less than .08, and that the officer had a ‘consciousness of innocence’ on your client’s part.

Defendant’s Reasons for Refusing Breath Tests

If the Defendant testifies, he will be asked about his refusal of breath, blood or urine tests. Since a Defendant’s refusal to submit to these is admissible as consciousness of guilt in most states,that will allow a Defendant to testify about hearsay under the ‘state of mind exception’ to the hearsay rule. Defense counsel should not miss this opportunity if the Defendant takes the stand.

Examples of admissible ‘state of mind’ exceptions as to why an innocent Defendant refused a test include:

a. “I read a newspaper article about a prosecutor who got stopped and she refused the test and I figured if it's good enough for her, it's good enough for me." (courtesy of Thomas Hudson, Florida DUI Attorney)

b. “I am aware of the fact that breath testing is unreliable, and can over-report true alcohol levels.”

c. “The officer told me I had a right to remain silent, so I didn’t feel that I had to.”

d. “My doctor told me not to trust those things.”

Closing Argument

OK, here we go. You’ve run your theme(s), and now its time to raise the American flag. Several arguments are always available, and many are foreshadowed by the techniques described above. Here are a few I have successfully used.

The 13th Juror

The judge told you at the beginning that the Defendant need never present any evidence, and that no inference should be drawn against him for that fact. The Judge will further instruct you that the Defendant is presumed innocent, and that this presumption rests with him throughout the course of the proceedings, including during your deliberations. That means that declining to provide evidence, as the Defendant did, leaves the State with no evidence to rebut the presumption that the Defendant is innocent.

The Presumption of Innocence is like the 13th juror in the jury room. It stands by the door, and says ‘You cannot leave this room with anything but a Not Guilty verdict until I have been completely destroyed.’ It hangs over every juror’s head, and it whispers in every juror’s ear, and the Presumption of Innocence says ‘Even if this or that fact was proven, the Defendant is innocent anyway.’

Even if the prosecutor proves that certain facts are true, the Presumption forces you to say, ‘So what, innocent people can do that too.’ And if it’s possible, even remotely, that these things can happen to innocent people, then the Presumption of Innocence compels you to sign that Not Guilty verdict.

And innocent people have the right to decline a test. They have the right to not give evidence. And they do. The mere fact that my client declined to do anything, makes him no more guilty of a DUI than he would be guilty of any other crime. He did what our forefathers died for, which was to not be tricked into proving his innocence; he held his ground in the face of an aggressive government agent who tried to make an innocent man do otherwise.

Death of a Family Pet

There are very few decisions in life that people can make based upon proof beyond a reasonable doubt. Most decisions we make are based upon far less than that. We buy a stereo at the store. If it doesn’t work right, we can always return it and get our money back. It is only those decisions, which once made, we will live with forever that require such a heavy burden, because the consequences are irreversible. Consider that one of those decisions might be whether to put a beloved family pet to sleep.

A person takes the pet to the veterinarian, because the pet has some symptoms. The vet comes out and says, ‘I have determined that your pet has cancer, and must be put to death.’ You pause, and take a deep breath. The veterinarian stares at you while you are asked to render that verdict. But first, you ask him:

‘Mr. Veterinarian, how much training have you had in Family Pet Cancer. He answers, ‘I took a three-day course and passed a 20-question, fill-in-the-blank, multiple choice test with a 75 percent pass/fail grading.’ (i.e., Field Sobriety Tests). And Mr. Vet, did you administer these tests? ‘No, because the pet declined the tests.’

And then you ask the Veterinarian ‘is there one definitive test that would tell you for sure whether my family pet in fact has cancer and must be put to sleep?’ And he says, ‘Yes, it is called a blood, breath, or urine test.’ ‘And Mr. Veterinarian, did you have the means available to take that test.’ And he says, ‘I did not do so because the family pet exercised his option to decline.’ ‘But you know that it is up to you to prove beyond a reasonable doubt that this pet has cancer, and you’re asking me to be convinced beyond a reasonable doubt, to just take your word for it with nothing more?’ And the Vet says, ‘yes.’ And when I ask ‘why?’ he says ‘Because I can infer that the pet has a guilty mind, and that he declined the tests because he knows he would have failed the cancer test and be put to sleep anyway.’

Now, who would at that moment put a family pet to sleep. Or rather put this man’s (pointing to client) pet to sleep based on such testimony. An irreversible decision based on the lack of testing? But, that is what we have here.

And now, they ask you to find that they have proven beyond a reasonable doubt that my client is guilty simply because they have no test results at all.

Paying It Forward

The judge and I have both discussed the legal principles involved in this case—proof beyond a reasonable doubt, that the burden rests with the prosecution, and that the defendant is presumed innocent. We talked about the blood that was spilled and the lives that were given for the past 200 years to gain and keep these principles, and how every jury since then has passed these principles into your hands today.

Now is your chance to apply these principles. And when you sign that Not Guilty verdict, you will be placing your signature onto an historical record for all of your descendants to see—for your grandchildren’s grandchildren to look, and say, ‘this is where my forefather stood.’ And when you sign a Not Guilty verdict, you can walk out of that room with your head held high, because you stood those grounds, even if it was with difficulty.

And you will be paying it forward, those great principles of our land. By saying Not Guilty, you will assure that tomorrow, and for some time to come, these principles will live on.

When the Prosecutor Says ‘Find Him Guilty Because He Refused’

When the prosecutor tells you to ‘Find him guilty for refusing’ they are saying to you ‘Find him guilty because we don’t have the evidence.’ They don’t have the definitive test. Every time they mention it, it’s them begging you to disregard the law, disregard their burden of proof, to excuse their obligations. If anyone had told my client, by declining the test you will be found guilty, he may have instead taken that test and proved his innocence. But they never gave my client that chance, did they?

Where is the proof that my client would have in fact failed the test? They want to argue that my client must have had a guilty mind? Where the proof that my client even knows how many drinks is more than .08? Where’s the proof that they fully and fairly explained how these machines even come up with an accurate number? Had they done so, then maybe, maybe then, a refusal would mean what they say. But they failed to do so here, and that is unfair.

The burden of proof here is the highest in the land—the same as a murder case. Would you find someone guilty of murder beyond a reasonable doubt if the prosecutor said ‘Find him guilty because we don’t have proof—he wouldn’t talk to us, he wouldn’t let us in his house, so he must be the one who did it?


Weaving a theme for refusals requires the defense lawyer to overcome many pre-conceived notions of the common juror. This dismantling of ‘those that refuse must be guilty’ has to start at the very beginning of the case, and doesn’t end until the jury returns to the courtroom with a verdict of ‘Not Guilty’ in their hands. A careful crafting of the law and the rights of all U.S. citizens is your guide to a true and just verdict in these types of cases. I hope these suggestions will benefit you in your next refusal case. ■


1. See, e.g. People v. Brooks, 334 Ill.App.3d 722, 778 N.E.2d 336 (Ill.App. 5 Dist.,2002 ) (holding that testimony regarding a defendant’s refusal to submit to a portable breath test (PBT), as well as any evidence of the test’s accuracy or availability, is inadmissible in the State’s case in chief, in a prosecution for driving under the influence, because “breathalyzer machines do not inherently suffer from the same scientific uncertainty that affects PBT machines. The admissibility of Breathalyzer test results is well established, and therefore, to prove intoxication, the prosecution may utilize both the test results and the refusal to take the test.”).

2. Pennsylvania v. Muniz, 496 U.S. 582 (1990).

3. South Dakota v. Neville, 459 U.S. 553 (1983).

4. People v. Johnson, 218 Ill.2d 125, 842 N.E.2d 714 (Ill. 2005).

5. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826 (1966).

Member Comments

Great article. Some problems with the questions though. What happened to not ever starting a question with "so"? I can see a smart cop burning you on that one. Also its the Constitution not god which gives people the right to not incriminate themselves. We've had lawyers, atheists, wiccans and pagans on juries here. That question would offend many of them as well as some very religious Christians and Jews especially those who know better god never gave anyone those rights.
I also have no idea what this question means: "You held the Defendant’s right not to give evidence against him, didn’t you?" Also objectionable as it calls on the cop to give a legal conclusion and I never have them do that. Clearly part of the thrust of the article is that people have a choice about doing the tests, either ok or not. The choice is theirs and afforded by the Constitution and the client elected one of the 2 possibilities and it shouldn't be held against her. We all make choices and when you set the case up for closing by suggesting to the cop that these tests are not perfect-some intoxicated do ok, some others based on nerves, being scared or possible medical issues may not make it through successfully, you have a great close. The client refused to take a test, well within her rights, a test that isn't perfect. It could lead to inaccurate result. Overall a very helpful article
Thank you for your comments. Obviously, one should formulate their questions for the jurors they have in front of them. Whether an atheist would (or would not) be "offended" is a point to consider as well. Nevertheless, these questions in one form or another have been used successfully by me on many, many ocassions over a 25 year period....

Stuart is right that tweaking these questions, to suit your community and personality are important considerations.