Srala v. Anchorage
In Srala v. Anchorage, 765 P.2d 103 (Alaska App. 1988) the Court held that Elson v. State did not apply to a case very similar to McCormick's. The defendant in Srala was arrested for driving while intoxicated and later refused to allow a blood test.
At trial, the government introduced evidence of the defendant's refusal.
On appeal, the defendant argued that introduction of this evidence was barred by Elson, but the Court ruled that Elson was distinguishable from Srala's case:
The present case is readily distinguishable from Elson. In contrast to Elson, a person legally arrested for driving while intoxicated does not have a fourth amendment right to refuse a breath or blood test. The only fourth amendment right such a person has is the right to be free of arrest on less than probable cause. Consequently, the government's comment on the refusal of an offered blood test does not chill the exercise of fourth amendment rights. Srala was lawfully under arrest for DWI and had no constitutional right to refuse a search incident to his arrest aimed at establishing his blood alcohol level. See Schmerber v. California, 384 U.S. 757 (1966). To the extent that Srala had a right to refuse a blood test, ... that right was a limited statutory right. Evidence of his refusal thus did not amount to an impermissible comment on the exercise of a constitutional right. (Srala, 765 P.2d at 105.)