Request By:
Honorable George M. McClure, III
Boyle County Attorney
Courthouse
Danville, Kentucky 40422
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Suzanne Guss, Assistant Attorney General
We are in receipt of your request for an opinion of this office as to whether, in a DUI prosecution, the prosecution witness (police officer) is prohibited from testifying that the defendant refused to take a breathalyzer test. You have stated that juries are aware of the fact that such tests are routinely given and the absence of testimony regarding the use or non-use of the test leaves the factfinder in a quandary.
A recent United States Supreme Court case addresses this issue. In South Dakota v. Neville, Slip Opinion No. 81-1453 (February 22, 1983), the Court held that "a refusal to take a blood-alcohol test, after a police officer has lawfully requested it, is not an act coerced by the officer, and thus is not protected by the privilege against self-incrimination." Id. at 11. Accordingly, admission of evidence of the defendant's refusal to take the test would not violate the Fifth Amendment privilege against self-incrimination. South Dakota v. Neville, supra, appears to overrule the Kentucky case Hovious v. Riley, Ky., 403 S.W.2d 17 (1966).
The Supreme Court also held that use of the evidence of refusal after a warning by a police officer that the driver's refusal could result in loss of his license did not violate the Due Process Clause. Since KRS 186.565(3) requires such warning, use of evidence of refusal in this state comports with the fundamental fairness required by Due Process.