I have what amounts to a 10 minute body camera video of my arresting officer explaining repeatedly to the defendant why she cannot give a sample of her breath when he requested blood. The defendant is basically acting like a diva and insisting that she has a choice. Ultimately she refuses to give a sample. There are a few parts where the waters get tricky for redaction purposes, but I am wondering if I run the risk of making the jury upset with me or my officer by showing her balking and continuing intoxicated behavior for 10 minutes. Its pretty annoying. Thoughts?
The fact of refusal is plainly admissible to support an inference of guilt. And the defense will want to make use of the fact that the refusal arguably had a different basis (fear of blood draws). But I am not sure proof of continued refusal is admissible. It may qualify as needless presentation of cumulative evidence, or other issues under TRE 403, even if its use does not run the risk you pose. I think it would be best to cut out the middle, use only the first instance and the last (unless the defense wants to play the balance).
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