State v. Morale

State v. Morale (2001-325); 174 Vt. 213; 811 A.2d 185

[Filed 06-Sept-2002]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                No. 2001-325


  State of Vermont	                         Supreme Court

                                                 On Appeal from
       v.	                                 District Court of Vermont,
                                                 Unit No. 1, Windsor Circuit

  Ralph N. Morale, Jr., Robert C. Knapp and 	 May Term, 2002 
  Gordon G. Parker


  Walter M. Morris, Jr., J.
      
  Matthew H. Huntington, Windsor County Deputy State's Attorney, White River
   Junction, for Plaintiff-Appellant.

  Brian R. Marsicovetere, Law Offices of Kevin W. Griffin, P.C., White River
   Junction, for Defendants-Appellees.


  PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.

        
       JOHNSON, J.   In this case, we confront the issue of whether admitting
  evidence of a DUI suspect's refusal to submit a breath test violates the
  suspect's constitutional privilege against self-incrimination in a
  prosecution for criminal refusal.  We decide that a defendant's statement
  refusing to submit to a breath test does not fall within the category of
  compelled testimony protected by either the general Fifth Amendment
  privilege against self-incrimination or by the rights announced in Miranda
  v. Arizona, 384 U.S. 436 (1966).  Recognizing that the State is entitled to
  compel a DUI suspect to submit to a breath test, we hold that the State is
  equally entitled to use evidence of a 

 

  refusal in the prosecution of a defendant for that refusal without
  violating his or her privilege against self-incrimination.

       Defendants Robert Knapp, Ralph Morale, and Gordon Parker, whose cases
  were consolidated in the trial court, were each separately arrested and
  processed for DUI under similar circumstances.  As part of that process,
  defendants were read their Miranda rights, and each declined to waive those
  rights.  The police officer in each case then read defendants the implied
  consent advisory, derived from 23 V.S.A. § 1202, that precedes the
  administration of a breath test to determine a suspect's blood alcohol
  content.  The advisory informs defendants that if the result of the test
  indicates that they are under the influence of alcohol they are subject to
  criminal charges, but that if defendants refuse to submit to the test their
  licences may be subject to civil suspension, or, if they have previously
  been convicted of DUI, they may be charged with criminal refusal.  In each
  case, defendant was asked if he would give a sample of his breath as
  evidence, and in each case, defendant answered no.
   
       Defendants were charged with criminal refusal in violation of 23
  V.S.A. § 1201(b). (FN1)  In district court, defendants moved to suppress
  the evidence of the refusals, arguing that their use would violate the
  constitutional protections against compelled self-incrimination.  Noting
  that defendants gave their refusal after they had invoked their Miranda
  rights, the court held the responses should be suppressed.  The court held
  that because defendants' answers were the very act giving rise to the
  criminal charges defendants faced, the responses could not fit within the
  de minimis exceptions to 

 

  Miranda that allow police officers to ask standard booking questions.  The
  State was granted this interlocutory appeal, and we reverse.

       The issue before us is narrow.  The United States Supreme Court has
  previously determined that refusal evidence may be admitted in prosecution
  of DUI cases without running afoul of the Fifth Amendment or Miranda. 
  South Dakota v. Neville, 459 U.S. 553 (1983).  The case before us therefore
  presents only the question of whether this holding should extend to cover
  prosecution for the refusal itself.  Although the district court appears to
  have based its decision on a violation of Miranda rights, defendants also
  claim that admission of refusal evidence violates the general Fifth
  Amendment protections against self-incrimination.  As each of these grounds
  for suppression involve somewhat separate inquiries, and are questions of
  law, we will address both.  See In re Taft Corners Assocs., Inc., 160 Vt.
  583, 593, 632 A.2d 649, 654?55 (1993) (in interest of judicial economy,
  Court may reach issues likely to recur on remand).
   
       The Fifth Amendment privilege against self-incrimination is violated
  when a defendant is compelled to produce testimony against himself.  See
  Pennsylvania v. Muniz, 496 U.S. 582, 588-89 (1990).  In this case, the
  issue of whether defendants' actual refusal is testimony rather than
  physical evidence is heavily contested by the parties.  The Supreme Court,
  in Schmerber v. California, 384 U.S. 757, 765 (1966), determined that blood
  alcohol concentration evidence was not testimonial, but rather physical,
  evidence, more akin to a fingerprint or a photograph than a communicated
  admission.  The Court in Neville acknowledged, however, that "the
  distinction between real or physical evidence, on the one hand, and
  communications or testimony, on the other, is not readily drawn in many
  cases."  Neville, 459 U.S.  at 561.  Indeed, 23 V.S.A. § 1201(b) punishes
  the refusal itself, whether it comes in the form of a verbal refusal, a
  head nod, or a sign indicating that the suspect refuses to take the test. 
  Nevertheless, in the only federal circuit case to confront this issue, 

 

  the Ninth Circuit concluded that the refusal was not testimonial because it
  "was not used for the testimonial or communicative content . . . [r]ather,
  it was used to show that [the defendant] had not performed the physical act
  . . . when requested."  Deering v. Brown, 839 F.2d 539, 542 (9th Cir.
  1988).  We need not dwell on this issue, however, because we find that the
  refusal, whether or not it is testimony, was not compelled.
   
       Where the refusal is not criminalized, the Supreme Court has held that
  no impermissible coercion is involved when a DUI suspect must decide
  whether to submit to a blood-alcohol test.  Neville, 459 U.S.  at 564.  In
  Neville, the defendant was arrested for DUI, read his Miranda rights, and
  then declined to take a blood-alcohol test, stating " 'I'm too drunk, I
  won't pass the test.' "  Neville, 459 U.S.  at 555.  The Supreme Court
  upheld a South Dakota statute that allowed the admission of that statement
  in the prosecution for DUI.  Id. at 564.  In Neville, the Court relied on
  its earlier decision in Schmerber that a State could compel a suspect to
  submit to the drawing of blood for a blood-alcohol test without violating
  the Fifth Amendment.  Schmerber, 384 U.S.  at 765.  Schmerber did limit its
  decision to contexts with similar facts.  Schmerber, 384 U.S. 768-72
  (holding that facts relevant to whether a state may constitutionally compel
  a suspect to provide a blood sample include whether the arresting officer
  had probable cause for the DUI arrest, whether there was sufficient time
  for the officer to obtain a search warrant, and whether the test was
  painful, violated suspect's religious beliefs, or medically dangerous). 
  Based on Schmerber's holding that in appropriate circumstances a State can
  legitimately compel a DUI suspect to submit to a test, the Court in Neville 
  concludes that in such circumstances a State commits no harm by giving a
  DUI suspect the choice of submitting to the blood-alcohol test or refusing
  to take the test.  459 U.S.  at 563.  The admission of the refusal into
  evidence is simply one of the "attendant penalties" for refusing to take
  the test.  Id.  The Court found that allowing a DUI suspect to choose
  whether or not 

 

  to submit to a blood-alcohol test does not violate the Fifth Amendment
  privilege against self-incrimination, for the police officer is not
  coercing the suspect to refuse the test.  See id. at 564 (noting that in
  fact the police officer wants the suspect to take the blood  test, "for the
  inference of intoxication arising from a positive blood-alcohol test is far
  stronger than that arising from a refusal to take the test.")

       Here, Vermont is requiring a breath test, which is less intrusive then
  a blood test, and has increased the "attendant penalty" by creating a
  separate crime for refusing to submit to the test.  That crime, however, is
  still based on the same rationale that justified the admission of the
  refusal in Neville.  Like South Dakota in Neville, Vermont has enacted an
  implied consent law,  23 V.S.A. § 1202(a)(1), which states:

    Every person who operates, attempts to operate, or is in actual
    physical control of any vehicle on a highway in this state is
    deemed to have given consent to an evidentiary test of that
    person's breath for the purpose of determining the person's
    alcohol concentration or the presence of other drug in the blood.

  The consent statute spells out a bargain between drivers and the State.  In
  exchange for the use of the roads within the State, drivers consent to have
  their breath tested if a police officer has reason to believe the driver is
  intoxicated.  Having so bargained, drivers may not rely on the privilege
  against self-incrimination to prevent the State from compelling a DUI
  suspect to produce a breath sample without his or her consent.  Schmerber,
  384 U.S.  at 765.  Rather than enforce the implied consent statute by
  compelling a DUI suspect to produce a breath sample, however, the
  Legislature has chosen to penalize the refusal to produce a sample
  voluntarily.  23 V.S.A. § 1201(b).
   
       Thus, if imposing a "penalty for refusing to take a blood-alcohol test
  is unquestionably legitimate," Neville, 459 U.S.  at 560, it remains only to
  determine whether applying this penalty in the context of criminal refusal
  justifies abandoning Neville.  In support of the trial court's decision,

 

  defendants argue that the nature of the choice they faced is fundamentally
  altered when the crime charged is the refusal itself, not DUI.  They
  contend that having to choose between taking a breath test, which could
  expose them to criminal liability, or refusing the test, which also carries
  criminal consequences, presents them with the "cruel" dilemma that the
  Fifth Amendment is designed to prevent.  See Murphy v. Waterfront Comm'n,
  378 U.S. 52, 55 (1964).  We disagree. 

       Because a DUI suspect is already deemed to have consented to the
  breath test, "no impermissible coercion is involved when the suspect
  refuses to submit to take the test."  Neville, 459 U.S.  at 562.  The court
  in Deering, confronting a criminal refusal statute, found that
  criminalizing the refusal does not transform its admission as evidence into
  a violation of the Fifth Amendment.  839 F.2d  at 542 (analogizing the
  refusal statute to a criminal contempt penalty for violating a court order
  to produce nontestimonial evidence).  Here too we cannot identify a
  persuasive reason to treat a criminal refusal any differently from the
  admission of refusal evidence in Neville.  Although defendants in this case
  were faced with an unpleasant choice - submit to the breath test and be
  prosecuted for DUI, or refuse to take the test and be prosecuted for
  criminal refusal - we find that the evidence of refusal no more violates
  the Fifth Amendment than would evidence of the breath test had defendants
  submitted to it.  See Neville, 459 U.S.  at 564 ("[C]riminal process often
  requires suspects . . . to make difficult choices.").  The evidence was not
  compelled because defendants had already agreed, albeit impliedly, to
  provide it.  Where "the state could have taken [defendant's] blood by
  force, it does not 'compel' a defendant to testify against himself when it
  allows him the choice of either producing the evidence or facing criminal
  charges - and even a mandatory prison sentence . . . for withholding it." 
  Deering, 839 F.2d  at 543.  Thus, the State is entitled to use evidence of
  defendants' refusals in a prosecution for criminal refusal without
  violating the general Fifth Amendment privilege against self-incrimination.

 

       The final issue is whether defendants' refusals were gathered in
  violation of the rights announced in Miranda.  The Supreme Court has held
  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."  Neville, 459 U.S.  at 564
  n.15.  We hold that this conclusion is strengthened when the context shifts
  to prosecution for criminal refusal.  Indeed, the protections and
  procedures of Miranda do not sensibly apply to this situation.

       First, above all else Miranda was intended to protect defendants from
  abusive police practices used to obtain confessions.  384 U.S.  at 445-58. 
  Such concerns are not relevant here.  In asking a defendant to submit to a
  breath test, a police officer has no incentive to use coercive procedures
  to convince the defendant to refuse.  In fact, the State's interest lies in
  the defendant submitting to the breath test, not refusing it.  See Deering,
  839 F.2d  at 543 (noting that criminalizing the refusal increases the
  compulsion to submit to the breath test, not the compulsion to refuse the
  test, which is the evidence that was allegedly compelled); Neville, 459 U.S.  at 564 (observing that the police officer wants the suspect to take
  the blood test).  Finding a Miranda violation in this case would do nothing
  to eliminate impermissible police conduct.  In fact, the question asked by
  the police officers here (i.e. "Do you wish to take the breath test?") is a
  required procedure for a DUI stop.  23 V.S.A. § 1202.  It would be
  anomalous, to say the least, to suppress evidence gathered by asking the
  statutorily required question.
   
       Second, Miranda rights were designed to protect defendants from being
  coerced into confessing to past crimes.  See Miranda, 384 U.S.  at 467
  (rights apply to a defendant subjected to in-custody interrogation designed
  to secure a confession).  Here, the police officers asked defendants if
  they wished to perform a future act (the breath test).  The police officers
  were not asking defendants to confess to a crime; rather their answers were
  the crime itself.  Still, there was no 

 

  inquiry, coercive or otherwise, into defendants' prior actions (e.g. "Have
  you been drinking?") that Miranda warnings were intended to prevent.

       In truth, despite the Miranda warnings, defendants in this case did
  not enjoy a right to remain silent, as far as responding to the request for
  a breath test, because a non-verbal refusal could still be grounds for
  prosecution.  23 V.S.A. § 1201(b) (a driver "shall not . . . refuse" a
  reasonable request for a breath test); see Neville, 459 U.S.  at 565 ("[T]he
  Miranda warnings emphasize the dangers of choosing to speak . . . but give
  no warning of adverse consequences from choosing to remain silent."). 
  Because of the inadequacies of the Miranda warnings in the context of a DUI
  stop, the police officer reads the suspect an additional set of warnings
  about the possibility that refusing to take the test will result in
  criminal prosecution for refusal.  23 V.S.A. § 1202(d) (outlining the
  required warnings).  We conclude that Miranda's protections do not apply to
  evidence of refusal to submit to a breath test, and thus defendants' rights
  were not violated.

       Reversed.



                                       FOR THE COURT:



                                      _______________________________________
                                      Associate Justice

------------------------------------------------------------------------------
                                  Footnotes


FN1.  That statute reads, "A person who has previously been convicted of a
  violation of this section shall not operate, attempt to operate or be in
  actual physical control of any vehicle on a highway and refuse a law
  enforcement officer's reasonable request under the circumstances for an
  evidentiary test where the officer had reasonable grounds to believe the
  person was in violation of [the criminal DUI statute]."