Proposed Jury
Instruction for Refusal to Take Breath Test
NOTICE TO COUNSEL AND JUDGES: As provided in the Court's Order accepting the proposed jury instructions for a period of working review, the Court's provisional approval "is for the purpose of refining and testing the application and accuracy of the pattern instructions and does not ensure error-free trials, and their use does not carry a no-reversal guarantee. It is not intended that this provisional acceptance is a final approval of the content of any instruction and each judge may use or refuse any instruction as he or she sees fit[,]" according to law. (emphasis added).
REFUSAL TO TAKE BREATH TEST
The Court instructs the jury that evidence of the
refusal of the Defendant to take a intoxilyzer test is competent evidence along
with other facts and circumstances on the Defendant's guilt. However, the jury
should consider any evidence of the refusal to take an intoxilyzer with caution
since such evidence has only a slight tendency to prove guilt because the refusal
may be attributed to a number of reasons other than the Defendant's consciousness
of guilt.
COMMENT
REFUSAL TO TAKE BREATH TEST
1. State v. Cozart, 352 S.E. 2d 152 (W.Va. 1986).
This instruction was sanctioned by the Court in Footnote 7 of this opinion.