Admissible as to consciousness of guilt?
What can law enforcement do differently?

By David Daggett

From what I have been able to gather from speaking with various defense attorneys, the number of impaired driving suspects refusing to take the Intoximeter (or blood test) will continue to rise. Many defense attorneys instruct their clients to refuse to take the Intoximeter unless they are absolutely certain that a breath test will result in a low BAC reading. Based upon my observations of current trends, I suspect that the commonplace refusal of suspected drunk drivers to perform field sobriety tests will be the next hurdle facing officers and prosecutors.

Unfortunately, except in extreme cases, it seems to have become standard practice to allow defendants who refuse to take the Intoximeter to plea to the lesser charge of Driving While Impaired (TR §21-902(b)), or worse yet, to Reckless or Negligent Driving. While it is no doubt easier to prove the §21-902(a) count when there is a breath or blood test, the fact of the matter is that many breath or blood test results are not admitted into evidence for one reason or another but we still proceed on the (a) count. It seems as if we need to see the actual BAC reading to convince ourselves as to whether the case is an (a) or a (b). That shouldn’t be the test. Analysis of the case should be based upon officer observations and opinion, results of field sobriety tests, in-car video; overall strength of the evidence and the particular trial judge’s predilections, among other things.

One piece of evidence that can be argued to the trier of fact is the defendant’s refusal to take the Intoximeter. It is clear from Maryland case law and the Maryland Pattern Jury Instructions that the defendant’s refusal to take the breath test is admissible as consciousness of guilt. The case of Wyatt v. State, 149 Md. App. 554 (2003) first resolved that legal issue. The defense in Wyatt based his argument on the right against self-incrimination as guaranteed by Article 22 of the Maryland Declaration of Rights. The defense needed to take this position clearly because of the Supreme Court’s prior decision in South Dakota v. Neville, 459 U.S. 553 (1985), which had closed out any possible reliance on the Fifth Amendment’s constitutional right against self-incrimination.

The Court of Special Appeals in Wyatt elected to follow the Supreme Court ‘s decision in Neville and held that the admission of the defendant’s refusal to submit to a breathalyzer test does not violate the defendant’s right against self-incrimination as guaranteed by Article 22 of the Maryland Declaration of Rights.

This issue was further addressed by the Court of Special Appeals in Harding v. State, 223 Md. App. 289 (2015) where we were treated to Judge Moylan outlining the history of the issue and the legislative changes that brought about Maryland Pattern Jury Instruction 4:10.5 – Effect of Refusal to Submit to a Blood or Breath Test, which reads as follows:

You have heard evidence that the defendant refused to submit to a test to determine

[his] [her] [alcohol level] [the presence of drugs or a controlled dangerous substance]. You must first decide whether the defendant refused to submit to a test. If you find that the defendant refused to submit to a test, you must then decide whether this refusal is evidence of guilt. Refusal to submit to a test may be based on reasons that are consistent with innocence or other reasons that are consistent with guilt. In order to decide whether the defendant refused to submit to a test and what, if any, weight to give the refusal, you should consider all of the evidence in the case.

Refusal to submit to Field Sobriety Tests

While it is clear that the defendant’s refusal to submit to a breath or blood test can be used against the defendant as consciousness of guilt, what say the courts about the refusal to submit to field sobriety tests?

Unfortunately, the Maryland appellate courts have yet to issue an opinion on that issue, though they came close to doing so in the 2013 case of McCormick v. State, 211 Md. App. 261. McCormick involved a suspected impaired driver who refused to submit to any field sobriety tests but after his arrest, did take the Intoximeter test, resulting in a BAC of 0.11. He argued that the officer lacked probable cause to believe that that he was driving while impaired by alcohol and that, as such, the BAC result should have been suppressed.

The Court of Special Appeals ultimately held that since the defendant had an odor of an alcoholic beverage emitting from his breath and had admitted to the officer that he’d had two drinks and had a license with an alcohol restriction, the officer had probable cause to arrest him for driving in violation of an alcohol restriction under TR §16-113, and which was an incarcerable offense under TR §27-101(c)(10), thus avoiding the issue regarding the refusal of FSTs.

Unfortunately, the Court closed its opinion by stating. “We leave for another day whether a person’s refusal to submit to a field sobriety test…is admissible in evidence as consciousness of guilt…” However, in footnote 6, the Court addressed the subject in a manner that would seem – when reading between the lines – to indicate they would support such an argument:

Although many of our sister states admit such evidence as consciousness of guilt and substantive evidence of guilt, it remains an open question in Maryland whether refusal to submit to a field sobriety test is admissible as evidence of guilt. See Johnson v. State, 337 Ark. 196, 987 S.W.2d 694, 698 (Ark. 1999) (stating that refusal to take a breath or field sobriety test indicates consciousness of guilt);  [16] State v. Taylor, 648 So. 2d 701, 704 (Fla. 1995) (holding that a defendant’s refusal to submit to a field sobriety test is admissible because it is relevant to the defendant’s consciousness of guilt); Hoffman v. State, 275 Ga. App. 356, 620 S.E.2d 598, 600 (Ga. Ct. App. 2005) (refusal to submit to a field sobriety test is admissible as circumstantial evidence to prove the driver was impaired); State v. Mellett, 642 N.W.2d 779, 788 (Minn. Ct. App. 2002) (holding that the trial court did not abuse its discretion in admitting the defendant’s refusal to take a field sobriety test); New Mexico v. Sanchez, 2001 NMCA 109, 131 N.M. 355, 36 P.3d 446, 449 (N.M. Ct. App. 2001) (stating that the State can use the driver’s refusal to take a field sobriety test as circumstantial evidence of consciousness of guilt); State v. Filchock, 166 Ohio App. 3d 611, 2006 Ohio 2242, 852 N.E.2d 759, 768 (Ohio Ct. App. 2006) (stating that an arresting officer may consider the driver’s refusal to submit to a field sobriety test in determining whether probable cause to arrest exists); Jones v. Commonwealth, 279 Va. 52, 688 S.E.2d 269, 272-73 (Va. 2010) (holding that a driver’s refusal to submit to a field sobriety test is circumstantial evidence “tending to show the driver’s awareness that his consumption  [17] of alcohol would affect his ability to perform such tests” and that an officer may consider the driver’s refusal in his assessment of probable cause); see also State v. Ferm, 94 Haw. 17, 7 P.3d 193, 205-06 (Haw. Ct. App. 2000) (holding that the admissibility of a defendant’s refusal to take a field sobriety test did not violate the defendant’s Fifth Amendment right to refrain from incriminating himself); State v. Hoenscheid, 374 N.W.2d 128, 129-30 (S.D. 1985) (same); Seattle v. Stalsbroten, 138 Wn.2d 227, 978 P.2d 1059, 1061 (Wash. 1999) (same). See also, State v. Smidli, 843 N.W. 2d 478 (Iowa, 2014).

In 2001, the General Assembly permitted juries to decide what weight, if any, to give the defendant’s refusal to take a chemical test in determining guilt or innocence. Maryland Code (1974, Repl. Vol. 2006) § 10-309(a)(2) of the Courts and Judicial Proceedings Article; Wyatt v. State, 149 Md. App. 554, 562, 817 A.2d 901, 905-06 (2003). Today, trial courts instruct jurors in drunk driving cases that they are permitted, if they so choose, to weigh the defendant’s refusal to take a chemical test when determining guilt or innocence.

When read in conjunction with the Maryland Court of Special Appeals decisions in Wyatt v State and Harding v. State, along with the United States Supreme Court opinions in South Dakota v. Neville, (admission of breath test refusal evidence as consciousness of guilt does not offend the constitutional right against self-incrimination) and Berkemer v. McCarty, 468 U.S. 420 (1984), (which held that the roadside questioning of a motorist detained pursuant to a routine traffic stop did not constitute “custodial interrogation” for purposes of Miranda, so that pre-arrest statements that a motorist made in answering such questions were admissible against the motorist) and a prosecutor would appear to be on solid ground in applying such an argument to the refusal to submit to field sobriety tests.

What other efforts can law enforcement make?

While NHTSA regulations only validate the “Big 3” of Standardized Field Sobriety Tests (HGN, Walk and Turn, One Leg Stand), and those tests should be offered whenever possible, they are not the be all and end all of field sobriety tests. There is nothing that precludes additional field sobriety tests from being offered.

Changing times (and changing attitudes on the part of drunk drivers) demands that police and prosecutors think outside the box. For example, with many military veterans returning from tours in the middle-east with prosthetic legs or other injuries that might inhibit the satisfactory completion of the walk and turn and one leg stand tests, it is even more important to look for additional clues of impairment other than the traditional three SFSTs.

In addition, many defense attorneys argue that individuals older than 65 years of age or those with back, leg or inner ear problems or more than 50 pounds overweight have difficulty performing the walk and turn and one leg stand test and will cite the NHTSA manual that these tests are not “validated” for people over 65 years old or more than 50 pounds overweight.

While original research did indicate that subjects over 65 years of age or with back and/or leg problems or weight issues may have had difficulty performing the physical tests, it is important to point out to the court that less than 1.5% of the original NHTSA test subjects were over 65, which was a statistically insignificant test group and therefore, difficult from which to draw any solid conclusions. There was also no data indicating how many of the test subjects from the original study were more than 50 pounds overweight. While age and back problems can effect both of the physical tests, a subject’s weight was only considered to be a possible factor in the one leg stand test, not the walk and turn. So, while the WAT and OLS tests were not “validated” for certain test subjects, that does not mean they are not “valid” for showing evidence of impairment. Officers should consider the subjects age, weight, location, injury history or other physical ailments when administering the tests. Make sure to include in your report all factors that you took into consideration.

One way for law enforcement to combat these claims by the defense is to offer additional roadside sobriety tests (after the Big 3) to offenders who may fall into the age, weight or injury categories. The finger to nose, backward count from one number to another, reciting the alphabet from one letter to another and putting coins on the ground and asking them to pick up a certain combination are all legitimate tests you can conduct when looking for signs of impairment. When conducting these additional tests, it is probably a good idea to always conduct them in the same manner. For example, always have them count backward from and to the same numbers; always have them start with the same letter and end with the same letter when doing the alphabet test and always try have them pick up the same combination of coins. That will help you in your courtroom testimony and help you remember what you asked them to do. In fairness, if you ask the subject to pick up 37 cents, you probably need to lay out something more than three quarters! And as a safety precaution, don’t pick up the coins until after the subject is secured in your patrol vehicle.

Again, these additional tests are not to be done in lieu of the HGN, WAT and OLS, but are additional tests you can offer to those subjects who fall into a certain category or who tell you that they will be unable to successfully complete the three standardized tests or who flat out refuse to attempt them. If they also refuse to do these additional, non-physical tests the prosecutor will have an even stronger argument to the court to use their refusal as consciousness of guilt.

Filing enhanced penalty notices under TR §27-101(x)

Drunk drivers – especially repeat offenders – learn from their prior experiences. Repeat offenders refuse the Intoximeter tests at a higher rate than do first offenders and the next step in their attempt to avoid prosecution is to refuse SFTSs. Let’s not let them get away with it.

Prosecutors should make a concerted effort to serve those who refuse the Intoximeter with notice of additional penalty under TR §27-101(x). If the trier of fact finds beyond a reasonable doubt that the person knowingly refused to take a test, the court may impose an additional term of incarceration of 2 months and/or a fine of $500. Such notice must be served on the defendant or the defendant’s counsel before the acceptance of a guilty plea or at least 15 days before trial in circuit court or 5 days before trial in District Court, whichever is earlier.