Arizona Court of Appeals says that a jury instruction telling the jury they can consider a DUI defendant’s refusal to submit to chemical tests when he did not refuse is harmless error.

3/4/16  In a jury trial the judge is required to instruct the jury on the law and evidence they must consider.  These instructions may be given at the beginning of the case and must be given at the conclusion of the evidence, before the jury retires to decide the case.


A jury instruction must be based on the law and evidence produced at trial.  A party is not entitled to a jury instruction which is not based on the evidence produced at trial.


In State v. Peraza, the prosecutor and defense attorney agreed that the evidence at trial showed the defendant did not refuse to submit to chemical tests.  Over defense counsel’s objection, the trial judge gave the jury this instruction:


A person who operates a motor vehicle within this state gives consent to a test or tests of his blood, breath, urine, or other bodily substance for the purpose of determining alcohol concentration or drug content if arrested for any offense arising out of acts alleged to have been committed by a person who was driving or in actual physical control of a motor vehicle while under the influence of intoxicating liquor or drugs. A failure to expressly agree to the test or successfully complete the test is deemed a refusal.


The defendant was convicted, and then appealed.  On appeal the Court of Appeals said that the giving of the instruction was in error.  However, the court ruled that within the context of the case it was harmless error, and thus did not reverse the conviction.  In doing so it pointed out the jury was instructed that some of the jury instructions may not apply, as well as the prosecutor did not argue the defendant refused the tests.  It also said the evidence showed the jury would have convicted the defendant even if the instruction had not been given.


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