Just recently, I represented a client who was found not guilty of DWI. However, the court still found her guilty of refusal. The state conceded that they would not be able to meet their burden of proof regarding the operation element of the DWI offense. However, since the court found that there was probable cause to arrest the defendant, then she was guilty of refusing to submit to a chemical breath test.
Honestly, the Judge’s decision was fair. Remember, in order to find a defendant guilty of refusal, the State must simply show that there was probable cause to arrest for suspected DWI, that the officer complied by reading the standard statement, and that the defendant refused to blow. Probable cause is not a very tough burden to meet. It is certainly not beyond a reasonable doubt. It is an amorphous concept, fact sensitive, and elastic. The facts in my client’s case certainly satisfied the test.
Yet, there was a real issue as to whether the defendant intended to operate her vehicle within the meaning of the case-law. The judge found that there was sufficient doubt in his mind that my client intended to operate, and that the State would have difficulty proving that element beyond a reasonable doubt. But given the circumstances as presented to the officer at the scene, there was still probable cause to arrest and request that she submit to an Alcotest.
The upside is that she does not have a DWI on her record, saved herself additional loss of license, saved hundreds in fines and fees, and her penalties for future DWI’s cannot be enhanced because of her conviction for refusal. My client was happy because she did not want a DWI on her driving record and have to tell future employers, friends and family that she had been convicted of DWI as opposed to refusal.