But several legal cases are starting to erode these types of statutes. One of them known as Missouri v. McNeely addressed whether a driver could be compelled to have his or her blood drawn to check for DUI. In this case, law enforcement had claimed that metabolization of alcohol in the blood constituted "exigent circumstances" which permits a nonconsensual blood draw. The court ruled against the prosecution, citing this practice as unconstitutional.Another case here in Washington pertained to an individual's presumption of guilt when refusing a breath test.
In State v. Gauthier, the court ruled that the mere fact that a person refused a DNA test did not indicate evidence of guilt, and thereby could not be used in a subsequent trial. Numerous judges in Washington have begun suppressing "refusal evidence."
Even other states are following this new constitutional analysis. The most recent pertinent case occurred in Kansas, which passed a law criminalizing the refusal to take a Breathalyzer test for those who have been previously arrested and/or convicted of DUI offenses. A Wichita TV station reports that a Sedgwick County District Court judge ruled that this law violates the Fourth Amendment that prohibits illegal search and seizure. The judge ruled that a person exercising his or her constitutional rights should not be punished by the law for doing so. It's hard to predict whether these "refusal" laws will go away completely. But right now, the trend seems to be turning against the enforcement of such provisions.