Who puts this language for an instruction in their DWI jury charge?
"You are instructed that you may consider the defendant�s breath test refusal as evidence in this case."
What arguments might the defense raise against it?

Jackie Borcherding

That is a comment on the evidence that receives judicial approval as part of the jury charge. Shouldn't be in the charge, as it identifies one particular piece of evidence and gives it more attention that other evidence. Simply charge the jury that they may consider ALL the evidence admitted during a trial. Then, use voir dire, opening statement and closing arguments to emphasize the meaning of a refusal.

Hess v. State, 224 S.W.3d 511, 515 (Tex.App.-Fort Worth,2007, pet. ref'd).

The issue is also pending in the Court of Criminal Appeals: 07-1461 BARTLETT, ROY BOB 01/23/08
APPELLANT�S ARANSAS DRIVING WHILE INTOXICATED



WHETHER THE TRIAL COURT�S INSTRUCTIONS TO THE JURY CONCERNING ITS USE OF THE BREATH TEST REFUSAL AS EVIDENCE CONSTITUTES A COMMENT ON THE WEIGHT OF THE EVIDENCE

I suppose we should expect to see this resolved like Walters & Brown--a marginally improper, but nevertheless improper, comment on the weight of the evidence.

JAS

And probably harmless.

Bartlett was decided in the way predicted: a jury charge on the issue of refusal is an improper comment on the evidence.


http://www.cca.courts.state.tx.us/OPINIONS/HTMLOPINIONINFO.ASP?OPINIONID=17660

Good news. The SBOT has published the first volume of its pattern jury charges in criminal cases. This book covers general charge language and intoxication and controlled substances offenses. There are some valuable annotations on charge language generally. Subsequent volumes will be based on the same format and will cover the remaining offenses and defenses.

My judge, in fact, mentioned this from the bench this morning. He was very pleased to see it extended into the criminal realm.

That is very encouraging to hear.

Are any others getting feedback from fellow prosecutors, the defense bar, trial courts or staff, or even using the charges yet?

[This message was edited by John A. Stride on 01-26-10 at .]

An instruction about the inference to be drawn from refusal to submit a breath sample is part of the law applicable to the case. It is provided by statute, just like the law concerning corroboration of an accomplice witness. Such an instruction is no different from the accomplice witness instruction, which similarly invades the province of the jury and singles out a particular part of the evidence and comments on its weight. What is good for the goose is good for the gander. Bartlett was hastily and poorly reasoned and should be overruled.