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Refusal of Chemical Testing

If after being requested to submit to testing, the driver opts not to take a breath, blood or urine test, or the person is unable to submit to one of these tests, he or she will be considered to have refused the test. A person's inability to blow hard enough or otherwise complete a test may be considered a refusal. Refusing a test can have serious consequences in terms of a person's driver's license and driving record which will be discussed later. However, a refusal does little to hurt a driver in the criminal case. Indeed, refusing a test may be used by the prosecutor as evidence against a person at trial in an attempt to demonstrate a guilty conscience, but a skillful trial attorney should be able to nullify such an inference and explain why a person might want to refuse a test. A refusal may be a positive in a criminal case because there is no way to prove that a person was over the legal limit of .08. Thus, the prosecutor must prove that a person was driving while under the influence to a degree which rendered her incapable of safely operating the vehicle. A refusal knocks out the prosecution's strongest evidence. However, many people are prosecuted and convicted despite the absence of a test.

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