WA: State can comment at trial on refusal to take FST

Because there is no constitutional right to refuse an FST, the state can comment on it at trial. State v. Mecham, 2014 Wash. App. LEXIS 1541 (June 23, 2014):

¶39 Mecham did not have a constitutional right to refuse consent to the field sobriety test, because the test was reasonable pursuant to a Terry stop. Mecham had only a common law right to refuse consent to the field sobriety test. Stalsbroten, 138 Wn.2d at 237. Such refusal is not testimonial under Stalsbroten, but “‘is best described as conduct indicating a consciousness of guilt.’” Id. at 234 (quoting Newhouse v. Misterly, 415 F.2d 514, 518 (9th cir. 1969)).

¶40 We hold that the State did not impermissibly comment on Mecham’s refusal to perform the field sobriety test, because there was no constitutional right for Mecham to refuse the test.6

6 See also Neville, 459 U.S. at 566 (holding that due process is not violated when the government commented on the defendant’s refusal to submit to a blood alcohol test, because the government did not mislead the defendant into believing his refusal could not be used against him in a later trial).