OUJI-CR 9-47

EVIDENCE - REFUSAL TO TAKE BLOOD ALCOHOL TEST

Evidence has been introduced of the defendant's refusal to take a test to determine the blood alcohol level in his/her body at the time of his/her arrest. You must first determine whether this refusal is evidence of guilt.

To find that the defendant’s refusal to take the blood alcohol test is evidence of guilt, you must find beyond a reasonable doubt that:

First, the defendant refused the test,

Second, with a consciousness of guilt,

Third, in order to avoid arrest or conviction for the crime with which he/she is now charged.

[Note: If the defendant has offered evidence explaining the refusal, give the following: The defendant has offered evidence explaining his/her refusal to take the blood alcohol test. You must consider this explanation in determining whether the defendant’s refusal is evidence of guilt.]

If after a consideration of all the evidence on this issue, you find beyond a reasonable doubt that the defendant refused the blood alcohol test with a consciousness of guilt in order to avoid arrest or conviction, then the defendant’s refusal to take the blood alcohol test is a circumstance which you may consider with all the other evidence in this case in determining the question of the defendant's guilt. However, if you have a reasonable doubt that the defendant refused the blood alcohol test with a consciousness of guilt in order to avoid arrest or conviction, then the defendant’s refusal to take the blood alcohol test is not a circumstance for you to consider.

Notes on Use

This limiting Instruction should be used if evidence of the defendant’s refusal to take a blood alcohol test is admitted. This Instruction is required in order to maintain consistency with the flight instruction and to avoid shifting the burden of proof to the defendant. Harris v. State, 1989 OK CR 15, ¶¶ 8-9, 773 P.2d 1273 , 1277-78 (Lumpkin, J., specially concurring).

Committee Comments

The Court of Criminal Appeals held in Harris v. State, 1989 OK CR 15, ¶ 7, 773 P.2d 1273 , 1274, that the admission of evidence of refusal to take a blood alcohol test in a prosecution for driving under the influence of alcohol did not violate either the United States or Oklahoma Constitutions.

(2008 Supp.)