Sandy City v. Larson

733 P.2d 137, 51 Utah Adv. Rep. 21, 1987 Utah LEXIS 641

• Court: Utah Supreme Court
• Decided: February 4, 1987
• Docket: 19754
• Status: Published

Opinions

HALL, Chief Justice:

The dispositive issue presented by this appeal is whether the admission into evidence of defendant’s refusal to submit to a breathalyzer test offends the right against self-incrimination guaranteed by article I, section 12 of the Utah Constitution. We conclude that it does not.

At approximately 12:15 a.m. on November 13, 1982, Officer Hal Cutler, a Sandy City police officer, responded to an anonymous tip concerning a suspected drunk driver. After spotting a vehicle matching the description given by the informant, the officer followed the vehicle for several blocks. During this time, he observed the vehicle moving back and forth in its own lane in a jerky fashion. The vehicle also crossed the lane lines four times. The officer, suspecting a drunk driver, turned on the police vehicle’s red lights. When defendant’s vehicle failed to stop, the officer turned on the siren. Defendant then pulled over.

Officer Cutler approached the vehicle on the driver’s side. Another officer, Officer Woodard, approached the passenger side. Officer Cutler asked defendant for his driver’s license and registration. Defendant said that he did not have a driver’s license with him and could not locate the registration. Officer Cutler, smelling the odor of alcohol on defendant’s breath, asked him to step out of the vehicle. Cutler then asked defendant how much he had had to drink, and defendant replied that he had consumed “seven or eight.” Defendant also said that “he knew he had too much to drink, but he only had one more block to go.” Cutler then asked defendant to perform field sobriety tests. While both officers observed, defendant attempted four tests, three of which he performed unsatisfactorily. Officer Cutler then decided that defendant was under the influence of alcohol and arrested him. Officer Cutler told defendant to turn around and empty his pockets, at which point defendant fled on foot. Defendant was pursued, caught, handcuffed, and placed in Cutler’s police car. Cutler did not give defendant a Miranda warning at any time.

Following the arrest, Cutler asked defendant to take a breath test to determine the amount of alcohol in his blood. Defendant refused. Cutler explained to defendant that if he refused to take the test, his license could be revoked for a year.¹ Defendant replied that “he didn’t care if he did lose his license.” Cutler asked defendant several more times to take the test. Defendant refused each time. Cutler then transported defendant to jail. At no time did Cutler inform defendant that his refusal to take the test could be admitted into evidence during any civil or criminal action or proceeding arising out of the incident.

After a jury trial in the Fifth Circuit Court, defendant was convicted of driving under the influence, driving with a suspended license, and interference with an arrest by a law enforcement officer. The Third District Court upheld the jury verdict.

U.C.A., 1953, § 41-6-44.10(h) (Repl. Vol. 5A, 1981 ed.) (amended 1983) provided:

If a person under arrest refuses to submit to a chemical test or tests ... evidence of refusal shall be admissible in any civil or criminal action or proceeding arising out of acts alleged to have been committed while the person was driving or in actual physical control of a motor vehicle while under the influence of alcohol or any drug....

(Emphasis added.) In the instant case, defendant refused several times to take a breathalyzer test after having been arrested for D.U.I. After the police officer advised defendant that he could lose his license if he refused to take the test, defendant responded that “he didn’t care if he did lose his license.” Defendant contends that the refusal and accompanying statement were impermissibly introduced into evidence in order to infer that defendant refused the test because he felt that he would fail it.

Article I, section 12 of the Utah Constitution provides that an “accused shall not be compelled to give evidence against himself.” The federal counterpart of this section is found in the fifth amendment to the Constitution of the United States. It provides that no person shall be compelled “to be a witness against himself.” In American Fork City v. Crosgrove,2 this Court defined the scope of article I, section 12 as being no broader than its federal counterpart and concluded that “the framers intended the privilege to have the same scope that it had under similar constitutional provisions, which was the scope it had at common law.”³ Thus, although we decide this case under the Constitution of Utah, cases decided by the United States Supreme Court and others offer guidance.

In Schmerber v. California,⁴ the United States Supreme Court held that a state could force a defendant to submit to a blood alcohol test without violating the defendant’s fifth amendment right against self-incrimination.⁵ Similarly, in Cavaness v. Cox⁶ and in Holman v. Cox,7 this Court held that a defendant has no constitutional right to refuse to submit to a blood alcohol test. The issue presented by this appeal was left open in Schmerber, Cavaness, and Holman. However, in South Dakota v. Neville,⁸ the United States Supreme Court addressed the issue and held that admission into evidence of a defendant’s refusal to submit to a blood alcohol test does not offend the fifth amendment right against self-incrimination.⁹

The facts in Neville do not differ significantly from those in the instant case. The defendant was arrested, and he refused to submit to a blood alcohol test although he was warned that he could lose his driver’s license if he so refused. South Dakota law provided that evidence of refusal to submit to a blood alcohol test was admissible at trial. Nevertheless, the defendant was successful at trial in having evidence of his refusal suppressed. On appeal, the South Dakota Supreme Court affirmed on the grounds that introducing evidence of the defendant’s refusal would violate both the federal and state constitutional privileges against self-incrimination. The United States Supreme Court reversed and remanded. The conclusions reached by that Court are helpful in our analysis of this case.

In Neville, the Court reiterated its holding in Schmerber that a person suspected of driving under the influence has no constitutional right to refuse to submit to a blood alcohol test which consists of physical evidence, as distinguished from testimonial evidence.¹⁰ The Court also reiterated that it had repeatedly held that the fifth amendment is limited to prohibiting the use of physical or moral compulsion to exact testimony from a witness asserting the privilege¹¹ and that this coercion requirement came from the constitutional language directing that no person “shall be compelled in any criminal case to be a witness against himself.”¹² Inasmuch as defendant Neville was given a choice of submitting to the test or refusing the same, the Court concluded that the values behind the fifth amendment were not hindered.¹³ Specifically, the Court held that “a refusal to take a blood-alcohol test, after a public officer has lawfully requested it, is not an act coerced by the officer, and thus is not protected by the privilege against self-incrimination.”¹⁴ Moreover, the Court reasoned that the suspect could be legitimately compelled to submit to the test against his will; that it was no less legitimate to offer the option to refuse the test, with the attendant penalties for the choice; and that the option to refuse the test was a true choice and not one designed to subtly coerce the taking of a test the State has no right to compel.¹⁵ Finally, the Court noted that “[i]n the context of an arrest for driving while intoxicated, a police inquiry of whether the suspect will take a blood-alcohol test is not an interrogation within the meaning of Miranda.”¹⁶

Although decisions of the United States Supreme Court and other courts are not binding upon us in interpreting our state constitution, the reasoning in Neville is persuasive, and in this instance we do not interpret our state constitution differently.

In this case, there was no compulsion by the State aimed at coercing defendant to refuse to take the test. In fact, under the statutory scheme set forth in the implied consent statute, any compulsion exercised on a defendant is to compel that defendant to take the test.¹⁷ The implied consent statute requires a defendant to provide evidence in the form of a breath sample.¹⁸ However, the. statute also affords the arrested driver the choice of refusing to take the test, but has expressly qualified that choice.¹⁹ A refusal has two penalties: (1) driver’s license revocation for a period of one year, and (2) use of the refusal against the defendant in any action arising out of the incident, including a criminal prosecution for driving while intoxicated.²⁰ Thus, all legal compulsion is on the driver to take the breathalyzer test and to provide the noncommunicative evidence. Since a defendant is not compelled to refuse the test, it need not be decided whether such a refusal is physical evidence or evidence of a testimonial and communicative nature.

The Court in Neville also held that admitting evidence of the refusal to take the blood alcohol test did not violate due process despite the fact that the suspect was not fully warned that such refusal was admissible at trial.²¹ The Court reasoned that the right to remain silent underlying the Miranda warnings is one of constitutional dimension and therefore cannot be unduly burdened, while the right to refuse the blood alcohol test is, by contrast, simply a matter of grace afforded by statute.²²

The Supreme Court of Kansas reached the same conclusion,²³ stating:

The taking or the refusal to take the test is an option provided by the legislature. Both the results of the test, if taken, or the refusal to take it, if declined, are admissible in evidence, and the admission of such evidence does not offend the Fifth Amendment privilege against self-incrimination or the right to due process.

... Since the refusal is not the exercise, of a constitutional right, but merely a matter of grace bestowed by the legislature, we hold that there is no requirement that an explanation of the accused’s right to refuse the test or of the consequences of that refusal be given. The officer administering the test may not mislead the accused, but h'e or she need not explain the possible consequences of a refusal to take the test.²⁴

We therefore hold that a refusal to take a breathalyzer test is not an act compelled by the State and is thus not protected by the article I, section 12 privilege against self-incrimination. Further, evidence of the refusal to take the test is admissible in evidence and does not offend the article I, section 12 privilege against self-incrimination or the right to due process.

We have reviewed defendant’s other issues on appeal and find them to be wholly without merit.

The conviction and judgment are affirmed.

STEWART and HOWE, JJ., concur.

1 . See U.C.A., 1953, § 41-6-44.10 (Repl.Vol. 5A, 1981 ed.) (amended 1983). This Court previously affirmed an order of the Third District Court revoking defendant’s driver’s license. See Larson v. Schwendiman, 712 P.2d 244 (Utah 1985).

2 . 701 P.2d 1069 (Utah 1985).

3 . Id. at 1073. In so holding, the Court overruled Hansen v. Owens, 619 P.2d 315 (Utah 1980), which had held the scope of article I, section 12 to have a broader dimension than its federal counterpart. Id. at 1071-72.

4 . 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).

5 . Id. at 761, 86 S.Ct. at 1830-1831.

6 . 598 P.2d 349 (Utah 1979).

7 . 598 P.2d 1331 (Utah 1979).

8 . 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983).

9 . Id. at 564, 103 S.Ct. at 922-923.

10 . Id. at 559, 103 S.Ct. at 920.

11 . Id. at 562, 103 S.Ct. at 922 (citing Fisher v. United States, 425 U.S. 391, 397, 96 S.Ct. 1569, 1574, 48 L.Ed.2d 39 (1976)).

12 . Id. at 562, 103 S.Ct. at 922 (emphasis in original) (citing U.S. Const, amend. V).

13 . Id. at 563, 103 S.Ct. at 922.

14 . 459 U.S. at 564, 103 S.Ct. at 923 (footnote omitted).

15 . See 459 U.S. at 563, 103 S.Ct. at 922.

16 . Id. at 564 n. 15, 103 S.Ct. at 923 n. 15 (citing Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)).

17 . See, e.g., Neville, 459 U.S. at 564, 103 S.Ct. at 923.

18 . A breath sample is noncommunicative in itself. Clearly, under our holding in Crosgrove, 701 P.2d at 1075, there is no self-incrimination violation if the defendant does provide such evidence even though his actions in doing so are compelled.

19 . Like Utah, many states have statutes that provide for the admissibility into evidence of a defendant’s refusal to take a blood alcohol test. Courts considering these statutes have found no violation of the privilege against self-incrimination under either the fifth amendment to the United States Constitution or the relevant state constitution. See, e.g., State v. Compton, 233 Kan. 690, 664 P.2d 1370 (1983) (Kan.Stat.Ann. § 8-1001(c) (1982) (amended 1985 & 1986)); State v. Jackson, 672 P.2d 255 (Mont.1983) (Mont.Code Ann. § 61-8-404 (amended 1985)); People v. Thomas, 46 N.Y.2d 100, 412 N.Y.S.2d 845, 385 N.E.2d 584, (1978) (N.Y.Veh. & Traf.Law § 1194(4) (amended 1985)); State v. Brean, 136 Vt. 147, 385 A.2d 1085 (1978) (Vt. StatAnn. tit. 23, § 1205(a) (1978) (amended 1981 & 1983)); City of Laramie v. Mengel, 671 P.2d 340 (Wyo.1983) (Wyo.Stat. § 31-6-105(f) (1977) (amended 1985)).

20 . U.C.A., 1953, § 41-6-44.10(b), (h) (Repl.Vol. 5A, 1981 ed.) (amended 1983).

21 . 459 U.S. at 565-66, 103 S.Ct. at 923-24. The Court concluded that unlike the situation in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), it was not fundamentally unfair to use the refusal to take the test as evidence of guilt even though the defendant "was not specifically warned that his refusal could be used against him at trial.”

22 . 459 U.S. at 565, 103 S.Ct. at 923. On remand, the Supreme Court of South Dakota interpreted the South Dakota Constitution to the contrary, State v. Neville, 346 N.W.2d 425 (S.D.1984), but has since partially overruled that decision, concluding that a refusal to perform a blood alcohol test does not constitute communicative or testimonial evidence. See State v. Hoenscheid, 374 N.W.2d 128 (S.D.1985).

23 . State v. Compton, 233 Kan. 690, 664 P.2d 1370 (1983).

24 . Id. at 694-95, 664 P.2d at 1375.