With the constant problem of accidents caused by drinking drivers and the fairly reliable results of breathalyzer tests established, judicial decisions have upheld the statutory scheme providing for its use through an era when rights of an accused have been greatly expanded. It has been held that the breathalyzer test results are not testimonial but physical evidence and therefore not protected by the Fifth Amendment privilege against self-incrimination. Thus, the accused has no constitutional right to refuse to take the test, and the prosecutor may comment at the trial on his refusal relying on its' probative value as to whether the driver was intoxicated at the time of the incident. New York goes even further and says as long as there is no compulsion to refuse to take the test, the refusal is admissable at trial.
"Motor Vehicles; Driving While Intoxicated; Section 4511.19; Implied Consent; Aurora v. Kepley,"
Akron Law Review: Vol. 13:
4, Article 9.
Available at: https://ideaexchange.uakron.edu/akronlawreview/vol13/iss4/9