No, You Don't Have To Take A DUI Test In Court

October 29, 2014

There's a lot of debate about sobriety tests for drunk drivers -- at least among those on the receiving end. For example, some lawyers will tell you to refuse a breathalyzer test if you're pulled over. Others will say that you're better to take it, because judges don't look too kindly at refusals when it comes to sentencing.

But according to Oregon's Court of Appeals, one place where you clearly don't have to submit to any kind of sobriety test is in a courtroom. 

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The case that led to that ruling involved a woman by the name of Christine Ann McCrary, who'd been stopped after running a red light. The officer first had McCrary undergo the "horizontal gaze nystagmus test" -- the one where you hold your head perfectly still and track the movement of a pen with your eyes. She didn't perform especially well, so the officer asked her to take a breath test. She blew a 0.12, significantly higher than Oregon's 0.08 legal maximum for blood alcohol content.

In many cases, McCrary's ordeal would've ended there, but she contested the citation. During the trial, her lawyers argued that McCrary was prone to involuntary eye movements, even when completely sober -- a condition that is moderately common. Prosecutors asked McCrary to prove it in the courtroom by undergoing a nystagmus test in front of the jury.

And that's where things got interesting. McCrary's attorney objected to her taking the test, on the basis that she could incriminate herself. Circuit Court Judge John L. Collins overruled that objection, saying that taking the test in the courtroom wasn't considered testimonial evidence, so she wouldn't technically be testifying against herself.  

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However, Collins didn't go so far as to force McCrary to submit to the test. She refused to take it, Collins informed the jury of McCrary's decision, and ultimately, the jury found her guilty.

McCrary appealed. Her lawyers argued that when Collins told the jury that McCrary had refused to take the nystagmus test, he had, in effect, compelled her to testify against herself. The appellate court agreed, and since there was no way of knowing what role McCrary's refusal to take the test played in the jury's decision, her conviction was overturned. 

Moral of the story: when you're on trial, ask your lawyers to try everything, and hope someone screws up.

If you want to read the appellate court's ruling, there's a PDF of it here.


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