Driver Who Verbally Agrees To Testing May Still Be Charged With Refusal: Direct or Circumstantial Evidence May Support Refusal to Test Charge

Minnesota case law regarding refusal to submit to chemical testing was further expanded in a published opinion filed December 21, 2010. In the case, Defendant was convicted in district court of first-degree refusal to submit to chemical testing, and appealed the matter to the Court of Appeals arguing that the inability to provide a test sample is insufficient as evidence to prove she refused.

The primary issue in this case was whether a driver who agrees to submit to a test, but is unable to produce a testable sample can be deemed to have refused. The court analyzed the direct and circumstantial evidence surrounding the alleged refusal, and considered the totality of the circumstances in upholding the district court’s conviction of first-degree refusal to submit to testing.

Defendant was arrested for suspicion of drunk driving, and after being read the implied-consent advisory and contacting an attorney, Defendant agreed to submit to a urine test. When the Defendant was unable to produce a sample on the first try, she was given somewhere between 6 and 15 glasses of water to drink. Appellant was given three opportunities, and allowed to attempt to provide a sample approximately three hours after the stop occurred. Defendant was even told by the officer before the final attempt that if she did not produce a sample, the matter would be treated as a refusal to submit to testing. Defendant failed to produce a sample.

Defendant argued that because she was cooperative and tried to produce a sample, she did not refuse. However, the court concluded that a verbal refusal is not required as a basis for a refusal charge. The court maintained that the test process can be frustrated without a verbal refusal, and therefore, the driver’s words and actions should be considered under the totality of the circumstances. The court determined that there was nothing to indicate that Defendant was physically unable to submit to testing, and considered the direct and circumstantial evidence presented.

Depending on cirumstances and a driver’s prior record, a refusal charge can have adverse consequences that aside from more severe jail time and fine amounts, may also result in plate impoundment, seizure and forfeiture of the driver’s vehicle and additional driver’s license revocation time. If you have been charged with a refusal, it is important that you contact an attorney right away to discuss your rights. Time is of the essence, and failure to be proactive may result in an involuntary surrender of your rights. Contact us at (612) 341-6575.

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Categories: DWI