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Is a refusal of field sobriety tests consciousness of guilt......NO!

Posted by Nathan Webb | Oct 18, 2013 | 0 Comments

In every DUI case there is usually litigation concerning Refusal evidence.  The government's proposition is that it constitutes a "consciousness of guilt" and is, therefore, relevant to the trier of fact (jury or judge).  Most judges, previously, agreed and would allow the government to utilize that tactic at trial.  Of course, no one is ever told that "hey let's do some field sobriety tests but if you refuse, the prosecutor will say it proves you were drunk!", thereby creating an unfair, unfounded proposition which then requires testimony from a defendant when they would normally be able to remain silent without repercussion.  Unfortunately, in that scenario, a defendant is forced to call BS.

Things, however, are trending in favor of defendants.  I recently argued this exact situation to an esteemed King County District Court judge and she held that given the recent decision in Missouri v. McNeely and State v. Gauthier, the refusal to participate in field sobriety tests would no longer be admissible for the purpose of establishing a consciousness of guilt.  Thankfully, this judge read the cases and articulated an extremely reasonable ruling.  I mean how fair is it that the government can say, hey since the defendant didn't take our ridiculously subjective feats of balance exam, he is guilty!  That is a load of horse manure.

I would suggest you watch the movie "The Man With Two Brains" with Steve Martin and skip to the field sobriety test portion, it is very humorous. See the clip here: Drunk Tests are Hard! Perhaps that clip is a bit of an exaggeration concerning field sobriety tests but given the fact these "Standardized" Field Sobriety Tests are administered in the same fashion to any individual (whether they are young, old, overweight, have already existing balance issues, have ADD, any other learning disorder, etc.) declining them is no evidence whatsoever of a consciousness of guilt.  Allowing them in to show an alleged consciousness of guilt then pits a defendant's explanation for why they wouldn't take such a test against that of an officer who is trained to testify that these tests are so simple a 5 year old could perform them.  Why should someone have to face off against an officer to prove these tests have no relevancy if not performed?  It is a ridiculous notion.

Hopefully this ruling will continue given the recent Supreme Court decisions and judges will start to literally apply the law.

Seattle DUI Attorney

Nate Webb

(425) 398-4323

About the Author

Nathan Webb

Nathan "Nate" Webb has been repeatedly recognized by Washington Law and Politics Magazine as a Super Lawyer Rising Star, named one of Seattle's Top Attorneys by Seattle Met Magazine and is rated Superb (perfect 10 out of 10) by


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