The Total Refusal

I was making an appearance on a first DWI. My client had declined to participate in the cop’s agility exercises (also known as “field sobriety tests”), both at the scene and at the station. The cop claims that at the scene my client showed signs of intoxication, but on the video from the station my client is rock solid.

In court, I handed the file to the number-two prosecutor: this one is a try-or-dismiss case; I, of course, think it should be dismissed. “We have a policy of trying all total-refusal cases, unless there is a good reason—like a medical excuse—for refusing. I’m sorry.”

“I’m sorry”?

My first thought was this: another stupid Lykos policy, implemented without consideration of the ethical ramifications. Trying all total-refusal cases might be politically-appealing: it might encourage people to cooperate with the police agility exercises by sending the message that refusing to play is not a free pass; it might make the DA appear to the SWRVs to be tough on crime.

But a policy of trying all total-refusal cases will result in people being put to trial on legally insufficient evidence—a waste not only of the defendant’s time, but also of valuable and increasingly scarce public resources. Every court day spent trying a total-refusal case is a day that could be spent trying a family-violence assault case; for every frivolous case the DA’s Office tries, it has to lower its plea offers on a host of other cases.

Further, even when the evidence is legally insufficient, anything can happen in a jury trial. In every case, there is a chance that something will go wrong for the government, or that something will go wrong for the defense. If the government forces enough cases that should be dismissed (because the evidence appears to be nowhere near proof beyond a reasonable doubt) to trial, someone will be convicted. So, aside from wasting resources, a policy of trying all total-refusal cases will result in people being convicted on factually and legally insufficient evidence.

None of that has any positive correlation to a prosecutor’s special duty, which is to see that justice is done. There is no justice in “trying all total-refusal cases.” A policy of trying all total-refusal cases—even if you exclude those total-refusal cases in which a person has a “good reason” to refuse—is unethical.

Unethical policies are cited and followed only by thoughtless or otherwise unethical lawyers. It occurred to me that dismal morale in the DA’s Office might be contributing to poor ethical practices among the line prosecutors. To gauge the depth of the problem, I stepped out of the courtroom, and conferred with a couple of prosecutors who had been around for a lot longer than the #2 who informed me of the policy. Is there a policy of trying all total-refusal cases? “No, that’s ridiculous.” “That’d be unethical.”

So rather than another stupid Lykos policy, implemented without consideration of the ethical ramifications, it appears that this is a stupid line-prosecutor policy, implemented without consideration of the ethical ramifications.

I returned to the courtroom to lie in wait for the chief in that court. Once she was settled in, I asked her: Do you have a policy of trying all total-refusal cases? “Yes, unless he has a medical excuse or other good reason for refusing”: almost verbatim what the #2 had said. Further, “it sends the message that refusing the FSTs is not a free ride.”

Don’t you think there are ethical problems with that? “Well, we evaluate each case.” That’s what we call crawfishing; before I left the courtroom the chief prosecutor had scuttled into a hole in the mud, denying ever having said that there was a policy at all; her #2, like a good little ethically-challenged toady, was agreeing with her.

I am slow to anger; I don’t get mad very often. So I started writing this last week, but held off on publishing it until I had cooled down a bit. I haven’t named the players here, but I hope they’ll recognize themselves, because I want to thank them for revealing themselves to me: if we hadn’t had this discussion, I might never know that you aren’t to be trusted. Unethical, and liars to boot.


  1. Aren’t SFSTs in the nature of a consensual search, so you have a constitutional right to decline them? It seems like there’s a problem with treating people worse because they are exercising a constitutional right.

    Do these DAs think it would be acceptable to try all cases where an accused person exercised their constitutional right not to talk to cops?

  2. Here they said they had a policy of not pleading down refusal cases – sorry, no exceptions, blah blah blah. UNTIL the police spokesman got charged with DWI and refused the breathalyzer… then it wasn’t a “policy” anymore.

  3. A person’s refusal to do FST’s like the refusal to give a Breath Test is something that a a jury or a judge can consdier as evidence of guilt. Unlike the situation with statementts there is no “constitutional protection” from having your refusal to cooperate used against you.I assume Mark is aware of this and I am happy to point him to case citations on the issue if he is not. As to the comment that a person can look rock solid on a video when they refuse to do FST’s? I have to agree with the Harris County prosecutors that looking sober doing nothing is no big deal.

    1. A person’s refusal to do FST’s like the refusal to give a Breath Test is something that a a jury or a judge can consdier as evidence of guilt.

      …Or as evidence of innocence. Because nobody with the normal use of his mental faculties would stake his future on being able to do the police agility exercises without lots of practice.

      By any ordinary person’s standard of intoxication, the person standing up interacting with police is going to show some sign of intoxication, rather than being rock-steady. After all, the cop arrested the guy for some reason and, other than bloodshot eyes and odor of an alcoholic beverage (neither of which by itself is proof of intoxication), all of the signs that a police officer might claim to have observed could have, had they existed, been caught on video.

      Aside from that, I’m afraid you missed the point, which is that the prosecutor claimed (and then disowned) a policy of trying all total-refusal cases. How do you feel about the ethics of such a policy?

      1. I don’t believe the policy raises any ethical issues. They say they review the cases and if they determine that those who “hide” evidence will not benefit from that conduct then that is there perogative. There is nothing unethical about letting a jury decide a case that you believe has sufficient evidence to convict. We try a lot of total refusal cases in my County as well and we win some and we lose some. I don’t doubt that the policy was frustrating to you but I feel the “uneithical” charge is thrown about too freely against prosecutors who are mostly guilty of not giving the defense what they want.
        I’d be happy to discuss the merits of the arguments about what the “refusal” to do tests shows but typing it out is beyond my typing ability.

      2. “We will try a total-refusal case (if we think there is otherwise enough evidence to convict)” is one thing. “We will try all total-refusal cases to send a message” is another entirely. You’re okay with the former. Fine. Me too. How about the latter? That is what the prosecutors both claimed was their policy, before I pressed them a little about the ethics of it and they started crawfishing.

        While I find various policies of the DA’s Office unethical (and while many of those policies are eventually abandoned once the ethical problems are brought into the sunlight) I am happy trying the cases that need trying, and I very very rarely accuse individual prosecutors—privately or publcily—of acting unethically.

        I recognize that this is a serious charge to make, even when not naming names. But I’m comfortable saying that these are two unethical prosecutors, especially in light of the fact that they both denied that the chief said what she clearly said.

  4. I have no comment on the ethics of saying one thing and then denying it. I think the “policy” is probably the version we “agree” is ethical and that what you were told was a poorly explained version of that policy. If it was my office I would say there is no need to add the language about saying we would look first to see if there was enough evdience because intake did that when they accepted the case. I think sending a message that a “total refusal” case is less likely to get any reduction consideration while a suspect who does the tests and does well is more likely to get some benefit is proper and ethical. How do you feel about family violence “no drop” policies?

  5. Thanks for the article. I totally agree with your point-of-view. I think any “one size fits all” approach to individual litigants/defendants will inevitably prove wasteful/unethical.

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