The U.S. Supreme Court will have oral argument for Missouri v. McNeely in January 2013. If the Supreme Court rules forced blood draw for person lawfully arrested for DUI violates the 4th amendment, and renders blood test result inadmissible, would the prosecutor still be allowed to use/comment the refusal as Consciousness of Guilty at trial?
Consciousness of Guilt... seems that there would be no reason that the the DA wouldn't still get that instruction regardless of the appeal's outcome, but then you (or your client!) would still be able to argue numerous alternative reasons for the failure to complete a chemical test.
In California if you have a refusal allegation the prosecutor can argue consciousness of guilt regardless if a forced blood draw eventually takes place. Depending upon the outcome of the case under review the blood results may not come in but the argument will still be made as long as the prosecutor alleged the refusal allegation.
I agree with my collegues. I would add that if a person refuses a chemical test, including a blood test, then DMV will automatically suspend the driving privileges of that individual for 1 year. In addition, even if the US Supremes opines that a forced blood draw is unconstitutional and the blood result cannot be used at trial, evidence of the officer's observations can be used at trial, including the fact that there was a refusal. As such, it is likely that a consciouness of guilt instruction will be allowed. However, unless there are facts/evidence to show impairment, a DUI conviction may be tougher for the DA if the Supreme Court opines that a blood draw without consent or exigent circumstances is unconstitutional since there would be a right to refuse. With that said, based on the makeup of the court, it is very difficult to predict how the issue will be decided. Some of the conservative justices are strict constructionists of the constitution and have surprised those of us in criminal defense as it applies to 4th amendment issues. This is a tough call right now and we wll have to wait and see! Very good question!
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