CA DUI Trial Question?
In a DUI case where the Defendant refused to take a Blood Alcohol Concentration test, what kind of testimony can they expect the D.A's criminalist to give at trial? The charge is based solely on the defendant's performance on field sobriety tests.
Answers:
In the absence of any chemical test being admitted into evidence, I don't see how a criminalist would have any relevant testimony to give.
EDIT: By the way, I agree that there is LOTS of other evidence which could be presented to show that the person was under the influence. However, your question concerned a criminalist, and with no chemical test I do not see why a criminalist would be called as a witness.
in tennessee its called violation of implied consent, and they take you straight to the hospital and draw your blood anyway.
refusing to take a breathylizer is just that - refusing to take a breathylizer.. there are other ways to determine a BAC such as drawing blood - forcibly if necessary.
They'll present the field sobriety test results, they'll probably have the arresting officer testify, and they'll probably make it clear that the defendant refused the Blood Alcohol test, as that is evidence of the defendant's willingness to cooperate. I mean, if you're not drunk...Why not take the test?
In most jurisdictions, refusal to give a BAC is prima facie evidence of driving under the influence. Therefore, the defendant would probably need to raise an affirmative defense.
The witness will describe the defendant's performance on the tests as well as his or her appearance, demeanor.
The way he was driving (which is basically what he got pulled over for). A thing call the HNT, which is the Horizontal Nystagmus Test. It's a part of the field sobriety test that you CAN NOT out-perform because it is based on the involuntary action of the eyeball. The sober eyes move smoothly, fluidly, while the eye movement of an intoxicated person is jerky. Things such as open containers in the vehicle are usually admissible, as are observations of the defendant leaving a drinking establishment. Witness testimony as to the defendant's observable intoxication is admissible, whether they are lay witnesses or cops, including the booking officers, the guards, the arresting officers, even the jailhouse janitor. So is the fact that when offered a breath test he refused (very damning in the eyes of the jury). The officer will also testify to the strenghth of the odor "commonly associated with alcoholic beverages" coming from the defendant. Note the quotation marks -- pure alcohol itself does not have an odor, but booze does. Any statements that he made will be used against him. I'm pretty sure his insurance company cancelled him, though that is NOT admissible at trial. So there is a lot of evidence that the state can bring to trial, even with a BAC test refusal. But even if he is acquitted, the administrative suspension on his license for the refusal will still stay in effect.
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