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SCOTUS cert petition asks whether blood test refusal is admissible in drunk-driving trial

Pennsylvania, like Wisconsin, has a statute permitting the prosecution at a drunk-driving trial to introduce evidence that a defendant refused a requested blood draw. Do such statutes comply with the Fourth Amendment where the defendant refused a warrantless blood draw and no constitutional exception applied? For an argument that they don’t, see the cert petition filed last month in Thomas Bell v. Pennsylvania. Wisconsin (like most states, according to the petition) has appellate case law saying a person’s refusal to relinquish a Fourth Amendment right–i.e., refusal to consent to a warrantless search–can’t be used against him or her. State v. Banks, 2010 WI App 107, 328 Wis. 2d 766, 790 N.W.2d 526 (2010). So how does that rule interact with the implied-consent law and Birchfield‘s approval (in dicta) of “evidentiary consequences” for refusals? Perhaps we’ll get an answer…

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