refusal to take test in Texas

1993In this case, appellant consented to the intoxilyzer test only after being advised of the statutory warnings pursuant to Tex.Rev.Civ.Stat. art. 67011-5 § 2, 4 and after being erroneously advised that his refusal'would result in his incarceration while passing the intoxilyzer test would result in his release. 5 As the Court of Appeals held in Sells, 798 S.W.2d 865 , “If a driver’s consent is induced by an officer’s misstatement of the consequences flowing from a refusal to take the test, the consent is not voluntary.” Sells, 798 S.W.2d at 867 (citing Hall v. State, 649 S.W.2d 627 (Tex.Cr.App.19

1993The Third Court, citing our opinion in Hall v. State, 649 S.W.2d 627 (Tex.Cr.App.1983), upheld the trial court’s ruling, explaining that "[i]f a driver’s consent [to a breath test] is induced by an officer’s misstatement of the consequences flowing from a refusal to take the test, the consent is not voluntary.” State v. Sells, 798 S.W.2d at 867 .

2003Id.

1986In State v. Jackson, 195 Mont. 185 , 637 P.2d 1 (1981), that Court correctly observed that “[ejvidence of a defendant’s refusal, whether expressed verbally or by physical resistance, is relevant in its testimonial aspect as the equivalent of the statement, ‘Because I fear that the.test will produce evidence of my guilt, I refuse to take the test.’ ” Admission of such refusal is too high a price to pay for the privilege of driving a motor vehicle on a highway.

1986In State v. Jackson, 195 Mont. 185 , 637 P.2d 1 (1981), that Court correctly observed that “[ejvidence of a defendant’s refusal, whether expressed verbally or by physical resistance, is relevant in its testimonial aspect as the equivalent of the statement, ‘Because I fear that the.test will produce evidence of my guilt, I refuse to take the test.’ ” Admission of such refusal is too high a price to pay for the privilege of driving a motor vehicle on a highway.

1986Also see State v. Munroe, 22 Conn.Sup. 321 , 171 A.2d 419 (1961); City of St.

1986Also see State v. Munroe, 22 Conn.Sup. 321 , 171 A.2d 419 (1961); City of St.

1986Furthermore, but as I pointed out in the dissenting opinion that I filed in Mc Ginty v. State, supra, how the refusal to take the test is relevant and sufficiently probative evidence to overcome its prejudical effects in a D.W.I. case also escapes me. “[T]he fact of the defendant’s refusal would be no more a relevant circumstance to establish consciousness of guilt than the fact of the arresting officer’s refraining from obtaining a warrant indicates that he believed that the defendant was not intoxicated ... [[Ejvidence of refusal] was simply not relevant evidence.” State v. Chavez, 96 N.M. 3

1986Furthermore, but as I pointed out in the dissenting opinion that I filed in Mc Ginty v. State, supra, how the refusal to take the test is relevant and sufficiently probative evidence to overcome its prejudical effects in a D.W.I. case also escapes me. “[T]he fact of the defendant’s refusal would be no more a relevant circumstance to establish consciousness of guilt than the fact of the arresting officer’s refraining from obtaining a warrant indicates that he believed that the defendant was not intoxicated ... [[Ejvidence of refusal] was simply not relevant evidence.” State v. Chavez, 96 N.M. 3

1977In State v. Severson, 75 N.W.2d 316 (N.D.1956), the Supreme Court of North Dakota wrote: “Whether the statute implies that evidence of a refusal to take a test may be not received in evidence against a defendant is a question that is not without difficulty.

1977In State v. Severson, 75 N.W.2d 316 (N.D. 1956), the Supreme Court of North Dakota wrote: "Whether the statute implies that evidence of a refusal to take a test may be not received in evidence against a defendant is a question that is not without difficulty.