Jack Shea's Law

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I agree with that statement; that's not what I'm proposing. I'm not saying refusal should be indicative of guilt of DWI - that's the same slippery slope as the 'presumed guilty of possession' example I gave. What I'm saying is that refusal to give a specimen when an LEO has *reasonable cause* to suspect DWI/DUI should be a V&T offense in and off itself; you're guilty of refusal to give a specimen, not guilty of DUI. You get tried and sentenced for refusal, simple as that. Does anyone know if that is in fact the law in any states?

Think of it as the equivalent of an obstruction charge where someone prevents or tries to prevent an LEO from performing a probable cause search. Does that make sense?

I think this is already covered. Refusing to give a sample automatically costs you your license for one year. To go ahead and begin prosecuting people for refusing to incriminate themselves through chemical tests.

I dont really think it is the equivalent of obstruction. To be obstruction a person must actively try to prevent justice. Simply not cooperating is not the same. If a LEO asks you if their are any illegal items in your vehicle and you say nothing are you really obstructing justice? I dont think so. No if the person throws the items out of the window or interfere with the lawful search then obstruction would be called for.

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This is a very slippery slope. Using a persons refusal to cooperate with their own incrimination to obtain a conviction is a dangerous and unprecedented legal action. While we all agree that drunk driving is a terrible and reckless act, we dont want to begin eroding our civil rights. It is one of the greatest protections we are afforded; lets protect it.

As happens all to often here on EMTBravo, false and misleading legal "opinions" are being given out by those who do not actually know what they're talking about.

In NYS, failure to consent to a Chemical Test CAN be used against you, as long as the totality of the circumstances support the Officer's request that you submit such a sample. And it is it's own charge, albeit not a serious charge. In NYS, you are deemed to have given consent when you choose to operate the motor vehicle, and subsequently, you must actively refuse to consent at that point which can be used against you, first at you DMV Refusal Hearing, which are fairly straightforward, then at any subsequent trial. The only burden on a police officer here in NYS is you must read the "DWI Warning" verbatim, which outlines the consequences for refusing. And in NYS, if the DWI involves a PIAA, we can obtain a Court Order, 24 hours a day, by phone to the "Superior Court duty judge" for the jurisdiction. All we have to do is articulate over the phone our basis, and he grants a verbal order, which means, if it takes strapping the guy down to get his blood, so be it.