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Four Elements of Willful Refusal

JURY INSTRUCTIONS:Refusal Instructions

Modified CALCIC 16.835 People v. Huston (1989) 210 Cal.App.3d 192, 208. V.C. §23612(a)(1)(A) and V.C. §23612(2)(A)

You are instructed that the prosecution has the burden of proof regarding whether in fact there was a willful refusal to take a chemical test. Before you consider said alleged refusal, and the weight to such a circumstance, if any, is entitled, and whether or not such conduct shows a consciousness of guilt, the prosecution must prove beyond a reasonable doubt the following:

  1. The defendant drove a motor vehicle;
  2. That the defendant was offered a choice of blood or breath test for the purpose of determining the alcoholic content of his blood;
  3. That the defendant was made aware of the nature of such tests and their purpose; and
  4. That after being offered such a choice of tests, and being made aware of their nature and purpose of such tests, the defendant willfully refused to take any of said tests.

If the prosecution does not prove beyond a reasonable doubt each of the four factors, then you should find there was not a refusal to take a chemical test. However, if you find the prosecution has proved beyond a reasonable doubt each of the above elements, then you should consider whether the refusal clearly demonstrated a consciousness of guilt or not.

Such refusal is not sufficient to establish the guilt of the defendant. It is a fact which, if proved beyond a reasonable doubt, may be considered by you in light of all other proved facts in deciding whether defendant is guilty or not guilty.

The weight to which such circumstances is entitled and whether or not such conduct shows a consciousness of guilt are matters for your determination, and if you find from all the evidence surrounding such refusal that it was done with a state of mind or purpose other than to refuse to submit to such a test, you may disregard it.