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6 Nova L.J. 209 (1981-1982)
Admissibility of Refusal to Submit to Blood Alcohol Test

handle is hein.journals/novalr6 and id is 219 raw text is: Admissibility of Refusal to Submit to Blood Alcohol Test James C. Hauser* Introduction Neither the United States Supreme Court nor the Florida Su- preme Court has yet ruled whether a defendant's refusal to take the Blood Alcohof Test1 is admissible evidence. The legal issues involved came into focus in Schmerber v. California,2 where the the Supreme Court ruled that a defendant did not have a fourth or fifth amendment right to resist the withdrawal of blood which would be tested to mea- sure the alcoholic content of his bloodstream. Justice Brennan, speak- ing for the majority, ruled that the results of the blood alcohol test were not testimonial in nature and did not infringe on the defendant's fifth amendment right not to incriminate himself.3 However, the Court left unanswered the question of whether admission into evidence of a defendant's refusal to submit to the blood alcohol test would violate his fifth amendment rights. After Schmerber, Florida's legislature passed an Implied Consent Statute. The statute stated that any person accepting the privilege of driving in Florida consented in advance to permit a blood test if he were arrested for driving under the influence of alcohol [DUI].5 If the alcohol level equalled or exceeded 0.10% by weight of his blood, the defendant was presumed to be under the influence of alcohol.8 If a de- * County Judge, Ninth Judicial Circuit of Florida; J.D. Boston University, 1973; B.S. University of Pennsylvania Wharton School of Finance, 1970. 1. The term test, unless otherwise stated, means any and all tests given to the defendant to determine the level of alcohol in his blood stream. 2. 384 U.S. 757 (1966). 3. Id. at 763, citing Holt v. United States, 218 U.S. 245 (1910). 4. FLA. STAT. § 322.261 (1969). 5. FLA. STAT. § 322.261(1)(a) (1979). 6. FLA. STAT. § 322.262(2)(c) (1979).