Double-Refusals – CDAC Member Portal

When a defendant refuses to complete both SFSTs and a chemical test, frequently referred to as a “double refusal,” the defendant has intentionally denied you the most compelling evidence of their impairment. In some ways, this limits you, but it does not mean you cannot prove your case. With other compelling evidence, the defendant’s refusal to complete any testing can bolster the jury’s belief that the defendant is guilty.

Review Your Evidence

Before trial, take stock of the evidence of impairment that you do have. Consider the common evidence of impairment and how powerful that evidence might be in your case. You do not need SFSTs or a chemical test if someone is driving recklessly, slurs their speech, and reeks of alcohol. Of course, not all cases are as easy to prove as cases when someone urinates themselves and falls over. The most difficult to prove double-refusal cases typically have much less compelling evidence.

Consider Further Developing Your Evidence

One solution to a dearth of evidence is to develop more evidence. You can do so in a few ways, including conducting additional investigation, re-interviewing witnesses, or consulting a DRE or another expert. If you have access to an investigator, or the officer on the case is willing to do additional investigation, you might be able to establish better timelines around the defendant’s whereabouts and use of alcohol before, during, and potentially after the offense. The officer or investigator could, for example, identify the defendant’s employer and find out whether the defendant worked around the time of the offense. If your investigator did, you can identify potential additional witnesses to the defendant’s drinking, drug use, impairment, or driving. You could also identify and obtain records that might be helpful, such as a search warrant, Court-ordered Production of Records, Rule 17 Subpoena for the defendant’s cell-phone location data, or, depending on what you have probable cause to search, other electronic data.

You may have body-worn camera footage of the defendant’s behavior that could allow you to consult a DRE. The DRE could review the footage and other evidence and opine on whether the defendant was, in their expert opinion, impaired—and due to which categories of substances. Just remember that you’re ethically obligated to discover to the defense any exculpatory information, including opinions from a DRE that don’t comport with your view of the case. You should never fear the truth. Your job, after all, is to do justice. If a DRE does not believe a defendant was impaired or has, in the DRE’s opinion, insufficient information to opine—even with access to all of the evidence of impairment—that likely means you do not have sufficient evidence to prove your charges beyond a reasonable doubt. In this scenario, you should staff your case with colleagues and a supervisor and consider dismissing it.

There are many other ways to further develop your evidence. Think carefully about what evidence might fill critical gaps in your case and how you might be able to obtain it. Get creative. If, however, after a concerted effort you find yourself struggling to identify ways of further developing your evidence, consult a more experienced colleague and brainstorm together.

Consider the Charges

If the available evidence makes it difficult to argue the defendant was “substantially impaired,” you may need to drop the DUI charge and proceed on the lesser-included offense of DWAI. DWAI is easier to prove when impairment is at issue because it requires only that the defendant be impaired “to the slightest degree.” In the absence of a crash, a high BAC, or other aggravating circumstances, most judges sentence first offenders similarly, and the mandated penalties for second and subsequent offenses for DUI and DWAI are the same.

Carefully Prepare Your Voir Dire

Prepare a voir dire focused on impairment and refusal. Juries asked the “would you get into a car with a driver who . . .” hypothetical often show strong negative responses to even minor evidence of impairment. You can usually start with evidence of impairment that is lesser than what you have in your case and work your way up to evidence similar to that or even potentially the same as that in your case. If the defense objects to “pre-trying the case,” just use different evidence.

Would you get into a car with driver whose breath smells like alcohol?

What if their breath smelled like alcohol and they had bloodshot, watery eyes?

What if they also swayed when they stood?

Why wouldn’t you get into a car with a driver who smells like alcohol, has bloodshot, watery eyes, and sways?

Next, you can ask “What would be the best evidence of someone’s impairment?” to try to get the jury to say “a chemical test” or something similar. Then, depending on the way the defendant refused, consider asking the jury why someone would refuse a chemical test: “why wouldn’t someone want you to see the results of a chemical test?” This combination of questions frames the case for the jury in a way that helps you overcome the double-refusal defense. If you do this correctly, the jury will be primed to see the case the way you do—the defendant drove under the influence and refused chemical tests to hide the best possible evidence of their guilt. The jury is also more likely to tolerate a lower quantum of evidence than they would have otherwise preferred.

To further press the point, consider asking what evidence the jury would expect to see in a case where a defendant has refused any testing. The jury would likely return identifying evidence of impairment. You can, if you prefer, ask the jury when they’ve seen an impaired person before and if so, how did they know the person was impaired. When the jury is done describing how they know the person was impaired, you can point out that they didn’t need a chemical test to determine that. You may remind them that they are permitted to use common sense to make rational judgments about the evidence. You can follow up by asking what evidence juries relied on before SFSTs and chemical tests existed to know that someone was impaired.

By the time you are done with this voir dire, the jury will be prepared to convict on the evidence you do have and not be so concerned with the absence of the evidence you wish you had.

Prepare an Opening Statement

During opening statement, humbly and confidently outline your evidence of impairment. Do not oversell the evidence you have. Always lead with your best evidence. Tell the jury that the evidence of impairment combined with the defendant’s refusal to complete SFSTs and refusal to complete a chemical test shows the defendant is guilty of impaired driving. This will anchor the jury’s expectations around the evidence you do have and will prepare the jury to believe that the evidence you outlined is legally sufficient to convict.

Expand on Details During Testimony

During direct examination, expand on every bit of evidence you have to demonstrate its import. Instead of allowing the officer to say only “I pulled the defendant over because he was driving recklessly,” expand upon that and have the officer explain that in vivid detail, showing how it demonstrates evidence of impairment.

You: Officer, why did you pull the defendant over?

O: Because he was driving recklessly.

You: Let’s break that down. What specifically did you observe the defendant do that you consider reckless driving?

O: He swerved from one lane to another and ran a red light.

You: Before he swerved, what lane was he in?

O: The far left.

You: What lane did he swerve to?

O: The far right.

You: How any lanes between the far left and the far right?

O: Two.

You: So he swerved from the far left lane, across two lanes, and then finally into the far right lane?

O: Yes

You: Then he proceeded through the light?

O: Yes.

You: How quickly did he proceed through the light?

O: He drove quickly through it. I don’t know the exact speed, but it was fast.

You: How long had the light been red? Had it just changed?

O: No, the light was solid red and had been so for at least a few seconds.

You: Were there any other vehicles on the road?

O: Yes, there were vehicles in front of the car and behind the car.

You: When the defendant drove through the red light, were other cars stopped for the red light?

O: Yes, all the other vehicles had either made it through the yellow or stopped for the red.

You: Where were you when you saw this?

O: I was in my police cruiser.

You: Where was your police cruiser relative to his car?

O: I was behind him, just a few feet back.

You: Was your police cruiser marked?

O: Yes

You: How?

O: Lights, decals, modified bumper, spotlight, the whole thing.

You: And he did this right in front of you?

O: Yes.

You: Your honor, permission to approach the witness with what has been marked as People’s Exhibit 10.

Judge: Granted.

You: Officer, I’m showing you People’s exhibit 10. Do you recognize this?

O: Yes.

You: What is this?

O: This is a photo of my police cruiser.

You: When was this photo taken?

O: About a week ago.

You: Even though it was taken a week ago, was your police cruiser in substantially the same condition as it was when the defendant veered across two lanes and ran a red light in front of you?

O: Yes.

You: Was it daytime or nighttime?

O: It was daytime.

You: So had the defendant looked in his mirror, he would have seen this vehicle?

O: Yes.

You: What did you do when you saw him rapidly change lanes and run the red light at a high rate of speed right in front of you?

O: I turned on my lights and pulled him over.

In this brief example, you demonstrate to the jury the degree of recklessness through vivid detail and, more importantly, the fact that the defendant drove recklessly right in front of a cop—something a sober person is unlikely to do. This will allow you to argue in closing arguments not only that the defendant drove dangerously but also that the defendant’s judgment was impaired. You’ll want to walk through every bit of evidence of impairment you have just like this and, as best as you can during direct examination without raising objections, relate the evidence to the defendant’s incapability of exercising:

1. 1. clear judgment,
  2. sufficient physical control, or
  3. due care in the safe operation of a vehicle.

Focus on Best Evidence of Impairment in Closing Arguments

In closing arguments, focus on the evidence of impairment and consider saving at least some of your refusal arguments for rebuttal close. Carefully list out the evidence of impairment and argue, using facts and common-sense logic, how each piece of impairment demonstrates the defendant was substantially incapable of exercising:

1. 1. clear judgment,
  2. sufficient physical control, or
  3. due care in the safe operation of a vehicle.

For example, in the scenario above, you can argue the defendant’s reckless and illegal driving from the far-left lane to the far-right—right in front of a police vehicle—shows the defendant was not exercising clear judgment and was not taking due care in the safe operation of a vehicle:

Members of the jury, the defendant displayed clear evidence of impaired judgment and an ability to exercise due care in the safe operation of a vehicle. The defendant quickly, without sufficient time to check mirrors and see the other cars around him, changed lanes and ran through a red light that had been solid red for at least two seconds. [Show photo of red light at that intersection that you previously admitted]. This red light. There can be no doubt he would have been able to see the light and comply with it if he had been sober and paying attention because all of the other vehicles had stopped for the light. Not the defendant. He barreled through the solid red at a high rate of speed, endangering everyone in his path. What’s more, he did this right in front of a highly visible police cruiser. [Show photo of the police cruiser that you previously admitted]. This police cruiser. Decals, lights, and the word “police” emblazoned across the body of the vehicle. It was daytime. Even if you didn’t have any other evidence in this case, you might be convinced such evidence of impaired judgment and an ability to exercise due care in the safe operation of a vehicle was proof enough that the defendant drove under the influence. But this is just the beginning of the evidence in this case.

Saving Your Best Rebuttal Arguments for Rebuttal Close

If the defendant focuses on the lack of evidence of impairment in his closing arguments, remind the jury the reason you cannot show them SFSTs or a blood test result is because the defendant denied the jury that evidence by refusing to take those tests he had already agreed to by driving in the state of Colorado. Depending on the way the refusal occurred, you might be able to remind the jury that the defendant was advised his refusal to take a test would result in consequences with the DMV, and yet the defendant refused anyway. Explain that this means the defendant believed it better to accept consequences with the DMV and deny the jury evidence of the defendant’s criminal guilt than to take the test and reveal his guilt.

You can conclude by talking about how the standard for guilt is beyond a reasonable doubt, not beyond all doubt. Ask them to hold you to the legal standard, “reasonable doubt,” and not an impossibly high one. Remind them they are permitted to use common sense when deciding a defendant’s guilt. Do not “ask” that the jury finds the defendant guilty, as though you are asking for a favor or pleading with them. Rather, tell them confidently but humbly that you have proven the case beyond a reasonable doubt and that the defendant is guilty.

Resources

Colorado Resources

Overcoming Defense Challenges in Impaired Driving Cases

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Review Your Evidence

Consider Further Developing Your Evidence

Consider the Charges

Carefully Prepare Your Voir Dire

Prepare an Opening Statement

Expand on Details During Testimony

Focus on Best Evidence of Impairment in Closing Arguments

Saving Your Best Rebuttal Arguments for Rebuttal Close

Resources