Jackson, Mississippi Criminal Defense Lawyer Discusses Whether The Fact That You Refused The Breath Test Can Be Used Against You

Unfortunately, the fact that you refused the test can be used against you in Mississippi.

I frequently say that DUI cases are the only type of criminal case where the courts allow the Constitution to be “temporarily suspended,” in order to ensure that a person is convicted.  This sentiment is clearly demonstrated by the fact that Courts allow a breath test refusal to be used as proof of guilt at trial.

Considering that we (American citizens), have an absolute right not to be compelled to give evidence against ourselves, and the right not to be searched without a warrant, one might reasonably assume that our refusal to give a breath sample could not be used against us at trial.  Such an assumption is clearly reasonable, and based upon rock-solid logic.  Such an assumption is also wrong.

Mississippi Code Annotated Section 63-11-41 states that if a person refuses to consent to a test to determine his blood alcohol concentration, then the fact that he refused can be used against him at trial.  That’s fine, but what about the Constitutional prohibitions against giving evidence against oneself, and the requirement of a warrant?  The Mississippi Court of Appeals took care of that in the case of Price v. State, 752 So.2d 1070 (Miss.App. 2000).   

In Price, over the objection of the defense, the State introduced evidence that the Defendant had refused the test.  The Court of Appeals held that the refusal was admissible.  The basis, you ask?  The Court held “the very nature of a drunk driving charge makes it critical for the State to obtain the necessary evidence before that evidence dissipates with time.”  Translation: The State’s ability to convict you of DUI outweighs your right not to incriminate yourself.  As I said before, Courts are all-too-willing to suspend the Constitution in DUI cases.

Even though the deck is stacked against keeping the test refusal out of evidence, there are still possibilities to get the refusal excluded.  If you’ve been charged with DUI, please call me to discuss your case.

Mississippi Criminal Defense Attorney Curt Crowley

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