§ 4.2 REFUSAL
Principle of Law: A defendant's refusal to submit to tests to determine the presence of alcohol in his blood is admissible in court. If a defendant initially consents to performing the tests, but thereafter refuses by his or her conduct (e.g., blows improperly during a breath test), the defendant's refusal is admissible in court. The results of a deficient sample are also admissible.
§ 4.2.1 Generally
Tornabene v. Bonine ex rel. Arizona Highway Dept., 203 Ariz. 326, ¶ 35, 54 P.3d 355, 367 (App. Div. 2, 2002)
A motorist is deemed to have refused to submit to testing when his or her conduct is such that a reasonable person in the officer's position would be justified in believing that such motorist was capable of refusal and manifested an unwillingness to submit to the test.
State v. Superior Court (Ahrens), 154 Ariz. 574, 744 P.2d 675 (1987)
Although the legislature does not have the power to make evidence of accused's refusal to take an intoxilyzer test admissible at trial, the refusal is nonetheless admissible because it is not testimonial evidence, but is rather physical evidence. As such, the admission of refusal evidence does not violate a defendant's Fifth Amendment rights.
Diaz v. Arizona Dep't of Transp., 186 Ariz. 59, 918 P.2d 1077 (App. Div. 1, 1996)
When a motorist is arrested for driving under the influence, the officer is required to request that the motorist take a blood or breath alcohol concentration test. The officer must also inform the motorist that his or her license or permit to drive will be suspended or denied for 12 months unless he or she expressly agrees to submit to and successfully completes the test or tests. If the motorist refuses the test and later requests a hearing regarding the propriety of action taken against his or her license or privilege to drive, the hearing officer is required to determine whether the motorist was informed of the consequences of refusal.
State v. Superior Court (Spears), 154 Ariz. 275, 742 P.2d 286 (App. Div. 2, 1987)
A defendant's privilege against self-incrimination is not violated by Arizona's implied consent law, including the provision permitting the introduction of evidence at trial of the defendant's refusal to submit to chemical tests to determine blood alcohol content. Since a defendant does not have a right to refuse to submit to the test and because the refusal itself is not testimonial communication, the admission of evidence of such refusal is not improper.
Schade v. Arizona Dep't of Transp., 175 Ariz....
