KY: State’s comment on refusal to consent to DUI test was prejudicial and error

Defendant was convicted of DWI 4th by a jury. The evidence in the case was slim, and he had witnesses with him that night who testified he never drank any alcohol. The state’s comment on his refusal to take a test was prejudicial error. McCarthy v. Commonwealth, 2019 Ky. App. LEXIS 104 (June 14, 2019):

The reasoning prohibiting any comment pertaining to the exercise of the Fifth Amendment privilege against self-incrimination equally applies to the Fourth Amendment privilege of being allowed to refuse unreasonable searches and seizures. This is especially true as consciousness of guilt can be inferred from a defendant’s refusal to consent to a search or to speak without counsel present. In discussing inferring consciousness of guilt, the Third Circuit of the United States Court of Appeals opined that there is “little, if any, valid distinction between the privilege against self-incrimination and the privilege against unreasonable searches and seizures[.]” United States v. Thame, 846 F.2d 200, 206 (3d Cir. 1988). Similarly, the Ninth Circuit compared the Fourth and Fifth Amendment privileges, holding that evidence should be equally inadmissible in the case of silence and in the case of refusal to let an officer search. The Court explained that “[i]f the government could use such a refusal against the citizen, an unfair and impermissible burden would be placed upon the assertion of a constitutional right and future consents would not be ‘freely and voluntarily given.'” United States v. Prescott, 581 F.2d 1343, 1351 (9th Cir. 1978).

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The Birchfield decision also held that while refusal to consent to a blood test could result in civil penalties under implied consent laws (such as loss of a driver’s license), it could not result in criminal penalties. Birchfield, 136 S.Ct. at 2185.

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