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When a defendant remains silent when offered a blood alcohol test

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Virginia law requires a one-year loss of license for unreasonably refusing to submit to a blood or breath test when there is probable cause to believe one is driving while intoxicated. Maryland law increases by sixty days the maximum possible jail time for such a refusal, when convicted for driving under the influence or driving while impaired.

What happens, then, when the police request a breath or blood test and the suspect remains silent? In the Fourth Circuit, that silence (versus spoken refusal) cannot be used against the defendant to prove that s/he was the driver, whether or not it can be used to try to prove refusal to take the breath test:

The magistrate judge considered Hagedorn’s silence after being advised of the implied consent statute as an admission that Hagedorn was, in fact, the driver. The Government argues this inference is permissible because of the constitutionality of the use of defendants’ incriminating statements relating to refusals to submit to blood and alcohol tests. See *110 South Dakota v. Neville, 459 U.S. 553, 566, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983) (upholding against a Fifth Amendment challenge the use of a defendant’s statement refusing to submit to breath test in a subsequent prosecution for refusal). We reject this reasoning. Hagedorn’s silence did not amount to a refusal. Indeed, he consented to the breath test, and the results were ultimately used against him at trial. Rather, Hagedorn merely exercised his right to decline to speak when advised of the implied consent laws applicable to motorists. We cannot agree that silence under such circumstances constitutes an admission of culpability. See, e.g., Miranda v. Arizona, 384 U.S. 436, 468 n. 37, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

U.S. v. Hagedorn, 55 Fed. Appx. 109 (unpublished) (4th Cir. Decided Dec. 16, 2002 decided on rehearing Feb. 3, 2003).

To put all this more in context, the Fourth Circuit finds no Fifth Amendment violation for admitting pre-arrest silence into evidence. U.S. v. Love, 767 F.2d 1052, 1063 (4th Cir. 1985).

Thanks to a fellow listserv member for posting on Hagedorn.