Is refusal to take a breath test admissible?

The results of a breath test are not always admissible. The machine has to be properly serviced and in good working order.

In State v. Cohen, the parties agreed that the results would not have been admissible, because the machine hadn't had a recent quality check. The defendant argued (and the district judge agreed) that her refusal to take the test likewise should be excluded. But Division One held that the refusal could be admitted, as evidence of a guilty mind. State v. Cohen, available on courts website, 2005 WL 39768 (Wash. App. Jan. 10, 2005).

Categories: DUI, evidence, cases