Jury Instruction On Breath Test Refusal As Improper Comment On The Evidence (Texas)

An instruction on the refusal to take a breath or blood test was an impermissible comment on the evidence. See Bartlett v. State, 270 S.W.3d 147, 154 (Tex. Crim. App. 2008); see also Guess v. State, (Tex. App. Tyler,  No. 12-08-00448-CR, Feb. 26, 2010) [“The instruction given in this case is improper both because it unnecessarily shines a light on a singular factual issue, the issue in Bartlett, and because it puts a judicial imprimatur on the conclusion that Appellant did refuse the breath test, a conclusion he contests here and contested at the trial court”].

For subscription based briefing and sample instructions on this and related issues see:

Forecite National™
34.7 - Refusal To Submit To Blood Alcohol Test
89.5 - Defenses And Defense Theories Regarding Blood Alcohol Testing
89.6 - Drunk Driving: Refusal To Submit To Blood Alcohol Test As Consciousness Of Guilt

Forecite California™
F 2130 - Refusal—Consciousness Of Guilt
F 2130 - Note 5 Refusal Instruction As Improper Comment On The Evidence