A South Dakota statute permits a person suspected of driving
while intoxicated to refuse to submit to a blood alcohol test, but
authorizes revocation of the driver's license of a person so
refusing the test and permits such refusal to be used against him
at trial. When respondent was arrested by police officers in South
Dakota for driving while intoxicated, the officers asked him to
submit to a blood alcohol test and warned him that he could lose
his license if he refused, but did not warn him that the refusal
could be used against him at trial. Respondent refused to take the
test. The South Dakota trial court granted respondent's motion to
suppress all evidence of his refusal to take the blood alcohol
test. The South Dakota Supreme Court affirmed on the ground that
the statute allowing introduction of evidence of the refusal
violated the privilege against self-incrimination.
Held:
1. The admission into evidence of a defendant's refusal to
submit to a blood alcohol test does not offend his Fifth Amendment
right against self-incrimination. A refusal to take such a test,
after a police officer has lawfully requested it, is not an act
coerced by the officer, and thus is not protected by the privilege
against self-incrimination. The offer of taking the test is clearly
legitimate, and becomes no less legitimate when the State offers a
second option of refusing the test, with the attendant penalties
for making that choice. Pp.
459 U. S.
558-564.
2. It would not be fundamentally unfair in violation of due
process to use respondent's refusal to take the blood alcohol test
as evidence of guilt, even though the police failed to warn him
that the refusal could be used against him at trial.
Doyle v.
Ohio, 426 U. S. 610,
distinguished. Such failure to warn was not the sort of implicit
promise to forgo use of evidence that would unfairly "trick"
respondent if the evidence were later offered against him at trial.
Pp.
459 U. S.
564-566.
312
N.W.2d 723, reversed and remanded.
O'CONNOR, J., delivered the opinion of the Court, in which
BURGER, C.J., and BRENNAN, WHITE, BLACKMUN, POWELL, and REHNQUIST,
JJ., joined. STEVENS, J., filed a dissenting opinion, in which
MARSHALL, J., joined,
post, p.
459 U. S.
566.
Page 459 U. S. 554
JUSTICE O'CONNOR delivered the opinion of the Court.
Schmerber v. California, 384 U.
S. 757 (1966), 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. We now address a
question left open in
Schmerber, supra, at
384 U. S. 765,
n. 9, and hold that the admission into evidence of a defendant's
refusal to submit to such a test likewise does not offend the right
against self-incrimination.
I
Two Madison, South Dakota, police officers stopped respondent's
car after they saw him fail to stop at a stop sign. The officers
asked respondent for his driver's license and asked him to get out
of the car. As he left the car, respondent staggered and fell
against the car to support himself.
Page 459 U. S. 555
The officers smelled alcohol on his breath. Respondent did not
have a driver's license, and informed the officers that it was
revoked after a previous driving-while-intoxicated conviction. The
officers asked respondent to touch his finger to his nose and to
walk a straight line. When respondent failed these field sobriety
tests, he was placed under arrest and read his
Miranda
rights. [
Footnote 1] Respondent
acknowledged that he understood his rights and agreed to talk
without a lawyer present. App. 11. Reading from a printed card, the
officers then asked respondent to submit to a blood alcohol test
and warned him that he could lose his license if he refused.
[
Footnote 2] Respondent refused
to take the test, stating "I'm too drunk, I won't pass the test."
The officers again read the request to
Page 459 U. S. 556
submit to a test, and then took respondent to the police
station, where they read the request to submit a third time.
Respondent continued to refuse to take the test, again saying he
was too drunk to pass it. [
Footnote
3]
South Dakota law specifically declares that refusal to submit to
a blood alcohol test "may be admissible into evidence at the
trial." S.D. Comp. Laws Ann. § 32-23-10.1 (Supp.1982). [
Footnote 4] Nevertheless, respondent
sought to suppress all evidence of his refusal to take the blood
alcohol test. The Circuit Court granted the suppression motion for
three reasons: the South Dakota statute allowing evidence of
refusal violated respondent's federal constitutional rights; the
officers failed to advise respondent that the refusal could be used
against him at trial; and the refusal was irrelevant to the issues
before the court. The State appealed from the entire order. The
South Dakota Supreme Court affirmed the suppression of the act of
refusal on the grounds that § 3223-10.1, which allows the
introduction of this evidence, violated the federal and state
privilege against self-incrimination. [
Footnote 5]
312 N.W.2d
723 (1981). The court reasoned that
Page 459 U. S. 557
the refusal was a communicative act involving respondent's
testimonial capacities, and that the State compelled this
communication by forcing respondent "
to choose between
submitting to a perhaps unpleasant examination and
producing
Page 459 U. S.
558
testimonial evidence against himself,'" id. at 726
(quoting State v. Andrews, 297 Minn. 260, 262, 212 N.W.2d
863, 864 (1973), cert. denied, 419 U.S. 881 (1974)).
[Footnote 6]
Since other jurisdictions have found no Fifth Amendment
violation from the admission of evidence of refusal to submit to
blood alcohol tests, [
Footnote
7] we granted certiorari to resolve the conflict. 456 U.S. 971
(1982).
II
The situation underlying this case -- that of the drunk driver
-- occurs with tragic frequency on our Nation's highways. The
carnage caused by drunk drivers is well documented, and needs no
detailed recitation here. This Court, although not having the daily
contact with the problem that the state courts have, has repeatedly
lamented the tragedy.
See Breithaupt v. Abram,
352 U. S. 432,
352 U. S. 439
(1957) ("The increasing slaughter on our highways, most of which
should be avoidable, now reaches the astounding figures only heard
of on the battlefield");
Tate v. Short, 401 U.
S. 395,
401 U. S. 401
(1971) (BLACKMUN, J., concurring) (deploring "traffic
irresponsibility and the frightful carnage it spews upon our
highways");
Perez v. Campbell, 402 U.
S. 637,
402 U. S. 657,
402 U. S. 672
(1971) (BLACKMUN, J., concurring) (footnote omitted) ("The
slaughter on the highways of this Nation exceeds the death toll of
all our
Page 459 U. S. 559
wars");
Mackey v. Montrym, 443 U. S.
1,
443 U. S. 17-19
(1979) (recognizing the "compelling interest in highway
safety").
As part of its program to deter drinkers from driving, South
Dakota has enacted an "implied consent" law. S.D. Comp. Laws Ann. §
32-23-10 (Supp.1982). This statute declares that any person
operating a vehicle in South Dakota is deemed to have consented to
a chemical test of the alcoholic content of his blood if arrested
for driving while intoxicated. In
Schmerber v. California,
384 U. S. 757
(1966), this Court upheld a state-compelled blood test against a
claim that it infringed the Fifth Amendment right against
self-incrimination, made applicable to the States through the
Fourteenth Amendment. [
Footnote
8] We recognized that a coerced blood test infringed to some
degree the "inviolability of the human personality" and the
"requirement that the State procure the evidence against an accused
by its own independent labors,'" but noted the privilege has
never been given the full scope suggested by the values it helps to
protect. Id. at 384 U. S. 762.
We therefore held that the privilege bars the State only from
compelling "communications" or "testimony." Since a blood test was
"physical or real" evidence, rather than testimonial evidence, we
found it unprotected by the Fifth Amendment privilege.
Schmerber, then, clearly allows a State to force a
person suspected of driving while intoxicated to submit to a blood
alcohol test. [
Footnote 9]
South Dakota, however, has declined to authorize its police
officers to administer a blood alcohol test against the suspect's
will. Rather, to avoid violent confrontations, the South Dakota
statute permits a suspect to
Page 459 U. S. 560
refuse the test, and indeed requires police officers to inform
the suspect of his right to refuse. S.D.Comp.Laws Ann. § 32-23-10
(Supp.1982). This permission is not without a price, however. South
Dakota law authorizes the Department of Public Safety, after
providing the person who has refused the test an opportunity for a
hearing, to revoke for one year both the person's license to drive
and any nonresident operating privileges he may possess. §
32-23-11. Such a penalty for refusing to take a blood alcohol test
is unquestionably legitimate, assuming appropriate procedural
protections.
See Mackey v. Montrym, supra.
South Dakota further discourages the choice of refusal by
allowing the refusal to be used against the defendant at trial.
S.D.Comp.Laws. Ann. §§ 32-23-10.1 and 19-1328.1 (Supp.1982).
Schmerber expressly reserved the question of whether
evidence of refusal violated the privilege against
self-incrimination. 384 U.S. at
384 U. S. 765,
n. 9. The Court did indicate that general Fifth Amendment
principles, rather than the particular holding of
Griffin v.
California, 380 U. S. 609
(1966), should control the inquiry. 384 U.S. at
384 U. S. 766,
n. 9. [
Footnote 10]
Most courts applying general Fifth Amendment principles to the
refusal to take a blood test have found no violation of the
privilege against self-incrimination. Many courts, following the
lead of Justice Traynor's opinion for the California Supreme Court
in
People v. Sudduth, 65 Cal. 2d
543, 421 P.2d 401 (1966),
cert. denied, 389 U.S. 850
(1967), have reasoned that refusal to submit is a physical act,
rather than a communication, and for this reason is not protected
by the
Page 459 U. S. 561
privilege. [
Footnote 11]
As Justice Traynor explained more fully in the companion case of
People v. Ellis, 65 Cal. 2d
529, 421 P.2d 393 (1966) (refusal to display voice not
testimonial), evidence of refusal to take a potentially
incriminating test is similar to other circumstantial evidence of
consciousness of guilt, such as escape from custody and suppression
of evidence. The court below, relying on
Dudley v.
State, 548
S.W.2d 706 (Tex.Crim.App.1977), and
State v. Andrews,
297 Minn. 260,
212 N.W.2d
863 (1973),
cert. denied, 419 U.S. 881 (1974),
rejected this view. This minority view emphasizes that the refusal
is "a tacit or overt expression and communication of defendant's
thoughts," 312 N.W.2d at 726, and that the Constitution
"simply forbids any compulsory revealing or communication of an
accused person's thoughts or mental processes, whether it is by
acts, failure to act, words spoken or failure to speak."
Dudley, supra, at 708.
While we find considerable force in the analogies to flight and
suppression of evidence suggested by Justice Traynor, we decline to
rest our decision on this ground. As we recognized in
Schmerber, 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. 384 U.S. at
384 U. S. 764.
[
Footnote 12] The situations
arising from a refusal present a difficult
Page 459 U. S. 562
gradation from a person who indicates refusal by complete
inaction, to one who nods his head negatively, to one who states "I
refuse to take the test," to the respondent here, who stated "I'm
too drunk, I won't pass the test." Since no impermissible coercion
is involved when the suspect refuses to submit to take the test,
regardless of the form of refusal, we prefer to rest our decision
on this ground, and draw possible distinctions when necessary for
decision in other circumstances. [
Footnote 13]
As we stated in
Fisher v. United States, 425 U.
S. 391,
425 U. S. 397
(1976),
"[t]he Court has held repeatedly that the Fifth Amendment is
limited to prohibiting the use of 'physical or moral compulsion'
exerted on the person asserting the privilege."
This coercion requirement comes directly from the constitutional
language directing that no person "shall be
compelled in
any criminal case to be a witness against himself." U.S.Const.,
Amdt. 5 (emphasis added). And as Professor Levy concluded in his
history of the privilege,
"[t]he element of compulsion or involuntariness was always an
ingredient of the right and, before the right existed, of protests
against incriminating interrogatories."
L. Levy, Origins of the Fifth Amendment 328 (1968).
Here, the State did not directly compel respondent to refuse the
test, for it gave him the choice of submitting to the test or
refusing. Of course, the fact the government gives a defendant or
suspect a "choice" does not always resolve the
Page 459 U. S. 563
compulsion inquiry. The classic Fifth Amendment violation --
telling a defendant at trial to testify -- does not, under an
extreme view, compel the defendant to incriminate himself. He could
submit to self-accusation, or testify falsely (risking perjury) or
decline to testify (risking contempt). But the Court has long
recognized that the Fifth Amendment prevents the State from forcing
the choice of this "cruel trilemma" on the defendant.
See
Murphy v. Waterfront Comm'n, 378 U. S. 52,
378 U. S. 55
(1964).
See also New Jersey v. Portash, 440 U.
S. 450,
440 U. S. 459
(1979) (telling a witness under a grant of legislative immunity to
testify or face contempt sanctions is "the essence of coerced
testimony"). Similarly,
Schmerber cautioned that the Fifth
Amendment may bar the use of testimony obtained when the proffered
alternative was to submit to a test so painful, dangerous, or
severe, or so violative of religious beliefs, that almost
inevitably a person would prefer "confession." 384 U.S. at
384 U. S. 765,
n. 9. [
Footnote 14]
Cf.
Miranda v. Arizona, 384 U. S. 436,
384 U. S. 458
(1966) (unless compulsion inherent in custodial surroundings is
dispelled, no statement is truly a product of free choice).
In contrast to these prohibited choices, the values behind the
Fifth Amendment are not hindered when the State offers a suspect
the choice of submitting to the blood alcohol test or having his
refusal used against him. The simple blood alcohol test is so safe,
painless, and commonplace,
see Schmerber, 384 U.S. at
384 U. S. 771,
that respondent concedes, as he must, that the State could
legitimately compel the suspect, against his will, to accede to the
test. Given, then, that the offer of taking a blood alcohol test is
clearly legitimate, the action becomes no
less legitimate
when the State offers a second option of refusing the test, with
the attendant penalties for making that choice. Nor is this a case
where the State has subtly coerced respondent into choosing the
option it had no right to compel, rather than offering a true
Page 459 U. S. 564
choice. To the contrary, the State wants respondent to choose to
take the 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.
We recognize, of course, that the choice to submit or refuse to
take a blood alcohol test will not be an easy or pleasant one for a
suspect to make. But the criminal process often requires suspects
and defendants to make difficult choices.
See, e.g., Crampton
v. Ohio, decided with
McGautha v. California,
402 U. S. 183,
402 U. S.
213-217 (1971). We hold, therefore, that a refusal to
take a blood alcohol test, after a police officer has lawfully
requested it, is not an act coerced by the officer, and thus is not
protected by the privilege against self-incrimination. [
Footnote 15]
III
Relying on
Doyle v. Ohio, 426 U.
S. 610 (1976), respondent also suggests that admission
at trial of his refusal violates the Due Process Clause because
respondent was not fully warned of the consequences of refusal.
Doyle held that the Due Process Clause prohibits a prosecutor from
using a defendant's silence after
Miranda warnings to
impeach his testimony at trial. Just a Term before, in
United
States v. Hale, 422 U. S. 171
(1975), we had determined under our supervisory power that the
federal courts could not use such silence for impeachment because
of its dubious probative value. Although
Page 459 U. S. 565
Doyle mentioned this rationale in applying the rule to
the States, 426 U.S. at
426 U. S. 617,
the Court relied on the fundamental unfairness of implicitly
assuring a suspect that his silence will not be used against him
and then using his silence to impeach an explanation subsequently
offered at trial.
Id. at
426 U. S.
618.
Unlike the situation in
Doyle, we do not think it
fundamentally unfair for South Dakota to use the refusal to take
the test as evidence of guilt, even though respondent was not
specifically warned that his refusal could be used against him at
trial. First, the right to silence underlying the
Miranda
warnings is one of constitutional dimension, and thus cannot be
unduly burdened.
See Miranda, supra, at
384 U. S. 468,
n. 37.
Cf. Fletcher v. Weir, 455 U.
S. 603 (1982) (post-arrest silence without
Miranda warnings may be used to impeach trial testimony).
Respondent's right to refuse the blood alcohol test, by contrast,
is simply a matter of grace bestowed by the South Dakota
Legislature.
Moreover, the
Miranda warnings emphasize the dangers of
choosing to speak ("whatever you say can and will be used as
evidence against you in court"), but give no warning of adverse
consequences from choosing to remain silent. This imbalance in the
delivery of
Miranda warnings, we recognized in
Doyle, implicitly assures the suspect that his silence
will not be used against him. The warnings challenged here, by
contrast, contained no such misleading implicit assurances as to
the relative consequences of his choice. The officers explained
that, if respondent chose to submit to the test, he had the right
to know the results, and could choose to take an additional test by
a person chosen by him. The officers did not specifically warn
respondent that the test results could be used against him at
trial. [
Footnote 16]
Explaining the consequences of
Page 459 U. S. 566
the other option, the officers specifically warned respondent
that failure to take the test could lead to loss of driving
privileges for one year. It is true the officers did not inform
respondent of the further consequence that evidence of refusal
could be used against him in court, [
Footnote 17] but we think it unrealistic to say that the
warnings given here implicitly assure a suspect that no
consequences other than those mentioned will occur. Importantly,
the warning that he could lose his driver's license made it clear
that refusing the test was not a "safe harbor," free of adverse
consequences.
While the State did not actually warn respondent that the test
results could be used against him, we hold that such a failure to
warn was not the sort of implicit promise to forgo use of evidence
that would unfairly "trick" respondent if the evidence were later
offered against him at trial. We therefore conclude that the use of
evidence of refusal after these warnings comported with the
fundamental fairness required by due process.
IV
The judgment of the South Dakota Supreme Court is reversed, and
the case is remanded for further proceedings not inconsistent with
this opinion.
It is so ordered.
[
Footnote 1]
The officer read the
Miranda warning from a printed
card. He read:
"You have the right to remain silent. You don't have to talk to
me unless you want to do so. If you want to talk to me, I must
advise you whatever you say can and will be used as evidence
against you in court. You have the right to confer with a lawyer,
and to have a lawyer present with you while you're being
questioned. If you want a lawyer but are unable to pay for one, a
lawyer will be appointed to represent you free of any cost to you.
Knowing these rights, do you want to talk to me without having a
lawyer present? You may stop talking to me at any time. You may
also demand a lawyer at any time."
App. 8.
See Miranda v. Arizona, 384 U.
S. 436,
384 U. S.
467-473 (1966).
[
Footnote 2]
The card read:
"I have arrested you for driving or being in actual physical
control of a vehicle while under the influence of alcohol or drugs,
a violation of S.D.C. L. 32-23-1. I request that you submit to a
chemical test of your blood to determine your blood alcohol
concentration. You have the right to refuse to submit to such a
test, and if you do refuse, no test will be given. You have the
right to a chemical test by a person of your own choosing at your
own expense in addition to the test I have requested. You have the
right to know the results of any chemical test. If you refuse the
test I have requested, your driver's license and any nonresidence
driving privilege may be revoked for one year after an opportunity
to appear before a hearing officer to determine if your driver's
license or nonresidence driving privilege shall be revoked. If your
driver's license or nonresidence driving privileges are revoked by
the hearing officer, you have the right to appeal to Circuit Court.
Do you understand what I told you? Do you wish to submit to the
chemical test I have requested?"
App. 8-10.
[
Footnote 3]
Responding to other questions, respondent informed the officers
that he had been drinking "close to one case" by himself at home,
and that his last drink was "about ten minutes ago." Tr. of
Preliminary Hearing 8.
[
Footnote 4]
South Dakota Comp.Laws Ann. § 19-13-28.1 (Supp.1982) likewise
declares that, notwithstanding the general rule in South Dakota
that the claim of a privilege is not a proper subject of comment by
judge or counsel, evidence of refusal to submit to a chemical
analysis of blood, urine, breath, or other bodily substance "is
admissible into evidence" at a trial for driving under the
influence of alcohol. A person "may not claim privilege against
self-incrimination with regard to admission of refusal to submit to
chemical analysis."
Ibid.
[
Footnote 5]
As JUSTICE STEVENS emphasizes,
post at
459 U. S. 567,
the South Dakota Supreme Court clearly held that the statute
violated the State, as well as Federal, Constitution. Although this
would be an
adequate state ground for decision, we do not
read the opinion as resting on an
independent state
ground. Rather, we think the court determined that admission of
this evidence violated the Fifth Amendment privilege against
self-incrimination, and then concluded without further analysis
that the state privilege was violated as well. In reaching its
holding, the court first analyzed our decisions in
Schmerber v.
California, 384 U. S. 757
(1966), and
Miranda v. Arizona, supra. The court then
described the issue for its review as being "[t]o determine whether
the
Fifth Amendment privilege against self-incrimination
applies to refusal evidence,"
312
N.W.2d 723, 725 (1981) (emphasis added), and later asked
"whether this testimonial evidence was compelled for purposes of
applying the
Fifth Amendment standard, "
id. at
726 (emphasis added). The cases relied on by the court to resolve
these issues analyze the
federal privilege against
self-incrimination.
The analysis of the court below was remarkably similar to that
of the state court opinion reviewed in
Delaware v. Prouse,
440 U. S. 648,
440 U. S.
651-653 (1979). That state court opinion analyzed
various decisions interpreting the Federal Constitution, concluded
that the Fourth Amendment violated the police procedure at issue
there, and then summarily held that the State Constitution was
therefore also infringed. As we characterized their analysis, every
police practice found to violate the Fourth Amendment would,
without further analysis, be held to be contrary to the State
Constitution as well. In such a situation, we concluded, this Court
has jurisdiction to review the federal constitutional issue decided
below.
JUSTICE STEVENS, while expressing general dissatisfaction with
Prouse, attempts to distinguish it by noting that the
state court there had said the State and Federal Constitutions are
"
substantially similar' and that `a violation of the latter is
necessarily a violation of the former.'" Post at
459 U. S. 571,
n. 7. But the South Dakota Supreme Court made virtually identical
statements. In a footnote, the court recognized the textual
difference between the federal and state constitutional privileges
against self-incrimination, but noted that this Court, in
Schmerber, had interpreted the Fifth Amendment prohibition
"in light of the more liberal definition of `evidence' as used in
our state constitution." 312 N.W.2d at 726, n. Therefore, the court
concluded,
"[s]ince the Fifth Amendment of the U.S. Constitution is broad
enough to exclude this evidence, there is no need to draw a
distinction at this time between S.D. Const. Art. VI, § 9 and the
Fifth Amendment of the U.S. Constitution."
Ibid. The court could not have stated more clearly that
it simply assumed that any violation of the Fifth Amendment
privilege also violated, without further analysis, the state
privilege. This was precisely the reasoning we found sufficient in
Prouse to give us jurisdiction to hear the case and decide
the federal constitutional issue.
[
Footnote 6]
The South Dakota Supreme Court also remanded for a determination
whether respondent's statement that he was too drunk to pass the
test was made after a voluntary waiver of his right to remain
silent. As yet, of course, there has been no final judgment in this
case. This Court nevertheless has jurisdiction under 28 U.S.C. §
1257(3) to review the federal constitutional issue which has been
finally determined, because if the State ultimately prevails at
trial, the federal issue will be mooted; and if the State loses at
trial, governing state law, S.D.Comp.Laws Ann. §§ 23A-32-4 and
23A-32-5 (1979), prevents it from again presenting the federal
claim for review.
See California v. Stewart (decided with
Miranda v. Arizona, 384 U. S. 436,
384 U. S. 498,
n. 71 (1966));
Cox Broadcasting Corp. v. Cohn,
420 U. S. 469,
420 U. S. 481
(1975).
[
Footnote 7]
See, e.g., cases cited in nn.
11 and |
11 and
S. 553fn13|>13,
infra.
[
Footnote 8]
Schmerber also rejected arguments that the coerced
blood test violated the right to due process, the right to counsel,
and the prohibition against unreasonable searches and seizures.
[
Footnote 9]
Schmerber did caution that due process concerns could
be involved if the police initiated physical violence while
administering the test, refused to respect a reasonable request to
undergo a different form of testing, or responded to resistance
with inappropriate force. 384 U.S. at
384 U. S. 760,
n. 4.
[
Footnote 10]
Griffin held that a prosecutor's or trial court's
comments on a defendant's refusal to take the witness stand
impermissibly burdened the defendant's Fifth Amendment right to
refuse. Unlike the defendant's situation in
Griffin, a
person suspected of drunk driving has no constitutional right to
refuse to take a blood alcohol test. The specific rule of
Griffin is thus inapplicable.
[
Footnote 11]
See, e.g., Newhouse v. Misterly, 415 F.2d 514 (CA9
1969);
Hill v. State, 366 So. 2d
318, 324-325 (Ala.1979);
Campbell v. Superior Court,
106 Ariz. 542,
479 P.2d 685
(1971);
State v. Haze, 218 Kan. 60,
542 P.2d 720
(1975) (refusal to give handwriting exemplar);
City of
Westerville v. Cunningham, 15 Ohio St.2d 121, 239 N.E.2d 40
(1968).
[
Footnote 12]
The Court in
Schmerber pointed to the lie detector test
as an example of evidence that is difficult to characterize as
testimonial or real. Even though the test may seek to obtain
physical evidence, we reasoned that to compel a person to submit to
such testing "is to evoke the spirit and history of the Fifth
Amendment." 384 U.S. at
384 U. S. 764.
See also People v. Ellis, 65 Cal. 2d
529, 537, and n. 9, 421 P.2d 393, 397, and n. 9 (1966)
(analyzing lie detector tests as within the Fifth Amendment
privilege). A second example of seemingly physical evidence that
nevertheless invokes Fifth Amendment protection was presented in
Estelle v. Smith, 451 U. S. 454
(1981). There, we held that the Fifth Amendment privilege protected
compelled disclosures during a court-ordered psychiatric
examination. We specifically rejected the claim that the
psychiatrist was observing the patient's communications simply to
infer facts of his mind, rather than to examine the truth of the
patient's statements.
[
Footnote 13]
Many courts have found no self-incrimination problem on the
ground of no coercion, or on the analytically related ground that
the State, if it can compel submission to the test, can qualify the
right to refuse the test.
See, e.g., Welch v. District
Court, 594 F.2d 903 (CA2 1979);
State v. Meints, 189
Neb. 264,
202 N.W.2d
202 (1972);
State v. Gardner, 52 Ore.App. 663,
629 P.2d
412 (1981);
State v. Brean, 136 Vt. 147,
385 A.2d 1085
(1978).
[
Footnote 14]
Nothing in the record suggests that respondent made or could
sustain such a claim in this case.
[
Footnote 15]
In 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. As we stated in
Rhode Island v. Innis,
446 U. S. 291,
446 U. S. 301
(1980), police words or actions "normally attendant to arrest and
custody" do not constitute interrogation. The police inquiry here
is highly regulated by state law, and is presented in virtually the
same words to all suspects. It is similar to a police request to
submit to fingerprinting or photography. Respondent's choice of
refusal thus enjoys no prophylactic
Miranda protection
outside the basic Fifth Amendment protection.
See
generally Arenella,
Schmerber and the Privilege
Against Self-Incrimination: A Reappraisal, 20 Am.Crim.L.Rev. 31,
56-58 (1982).
[
Footnote 16]
Even though the officers did not specifically advise respondent
that the test results could be used against him in court, no one
would seriously contend that this failure to warn would make the
test results inadmissible had respondent chosen to submit to the
test.
Cf. Schneckloth v. Bustamonte, 412 U.
S. 218 (1973) (knowledge of right to refuse not an
essential part of proving effective consent to a search).
[
Footnote 17]
Since the State wants the suspect to submit to the test, it is
in its interest fully to warn suspects of the consequences of
refusal. We are informed that police officers in South Dakota now
warn suspects that evidence of their refusal can be used against
them in court. Tr. of Oral Arg. 16.
JUSTICE STEVENS, with whom JUSTICE MARSHALL joins,
dissenting.
The Court is understandably anxious to do its part in curtailing
the "carnage caused by drunk drivers."
Ante at
459 U. S. 558.
I sympathize with that concern, but it does not justify the
rendition of an advisory opinion on a constitutional issue. In
Page 459 U. S. 567
this case, the Court has no power to reverse the judgment of the
South Dakota Supreme Court, because its decision rests on an
adequate and independent state ground. I therefore cannot join the
Court's opinion.
The South Dakota Supreme Court framed the question before it on
appeal as
"whether SDCL 32-23-10.1 is a violation of Neville's federal and
state constitutional privilege against self-incrimination.
U.S.Const. Amend. V; S.D. Const. art. VI, § 9."
312
N.W.2d 723, 725 (1981). After analyzing both federal and state
cases, the South Dakota Supreme Court concluded:
"We hold that evidence of the accused's refusal to take a blood
test violates the federal and state privilege against
self-incrimination, and therefore SDCL 32-2310.1 is
unconstitutional."
Id. at 726. Thus, the South Dakota Supreme Court
unambiguously held that the statute violated the State
Constitution. That holding is certainly adequate to support its
judgment, and is beyond our power to review.
Given the existence of an adequate state ground, it is
established beyond dispute that this Court may not take
jurisdiction if the state ground is independent. [
Footnote 2/1] In this case, we lack jurisdiction
because the South Dakota Supreme Court has not indicated,
explicitly or implicitly, that its construction of Art. VI, § 9, of
the South Dakota Constitution was contingent
Page 459 U. S. 568
on our agreement with its interpretation of the Fifth Amendment
to the United States Constitution. [
Footnote 2/2] There is no general presumption of federal
law, no general presumption of state law, and no specific language
in the opinion below to suggest that the South Dakota Court
harbored such an opinion.
Unless we have explicit notice that a provision of a State
Constitution is intended to be a mere shadow of the comparable
provision in the Federal Constitution, it is presumptuous -- if not
paternalistic -- for this Court to make that assumption on its own.
No matter how eloquent and persuasive our analysis of the Federal
Constitution may be, we cannot simply
presume that the
highest court of a sovereign State will modify its interpretation
of its own law whenever we interpret comparable federal law
differently. Even when a state tribunal misconceives federal law,
this Court cannot vacate its judgment merely to give it an
unsolicited opportunity to reanalyze its own law. [
Footnote 2/3] If a state court judgment
Page 459 U. S. 569
is premised on an adequate state ground, that ground must be
presumed independent unless the state court suggests otherwise.
[
Footnote 2/4]
Nothing in South Dakota law establishes a presumption that the
State Constitution adds no additional protections for South Dakota
residents beyond those already provided by the Fourteenth Amendment
to the Federal Constitution. Indeed, the South Dakota Supreme Court
has explicitly established a contrary presumption:
"This court is the final authority on interpretation and
enforcement of the South Dakota Constitution. We have always
assumed the independent nature of our state constitution regardless
of any similarity between the language of that document and the
federal constitution."
State v. Opperman, 247 N.W.2d
673, 674 (1976). [
Footnote
2/5]
Page 459 U. S. 570
Thus, both federal and South Dakota law establish the
presumption that an adequate state ground is independent. That
presumption is reinforced in this case. For the opinion of the
South Dakota Supreme Court explicitly noted that the language of
the South Dakota Constitution is "more liberal" than the comparable
federal language. 312 N.W.2d at 726, n. [
Footnote 2/6] It was willing to rest the judgment on
federal as well as state grounds, however, because this Court's
opinion in
Schmerber v. California, 384 U.
S. 757,
384 U. S.
761-762, n. 6 (1966), had assumed that the Fifth
Amendment should be construed as broadly as the more liberal state
language. 312 N.W.2d at 726, n. It concluded that federal law is
"broad enough" to exclude the evidence in this case, and it
therefore saw "no need to draw a distinction
at this time"
between state and federal law.
Ibid. (emphasis added).
Those words plainly suggest that the State Supreme Court did not
understand its holding to be "dependent" on this Court's view of
federal law. [
Footnote 2/7]
Page 459 U. S. 571
Because there exists an independent and adequate state ground
for the judgment below, I would dismiss the writ of certiorari.
[
Footnote 2/8]
[
Footnote 2/1]
"[W]e will not review a judgment of a state court that rests on
an adequate and independent ground in state law. Nor will we review
one until the fact that it does not do so appears of record."
Herb v. Pitcairn, 324 U. S. 117,
324 U. S. 128
(1945).
Accord, Jankovich v. Indiana Toll Road Comm'n,
379 U. S. 487
(1965);
Honeyman v. Hanan, 300 U. S.
14,
300 U. S. 18-19
(1937);
Fox Film Corp. v. Muller, 296 U.
S. 207 (1935);
Lynch v. New York ex rel.
Pierson, 293 U. S. 52
(1934);
McCoy v. Shaw, 277 U. S. 302
(1928);
Petrie v. Nampa and Meridian Irrigation District,
248 U. S. 154,
248 U. S. 157
(1918);
Enterprise Irrigation District v. Farmers Mutual Canal
Co., 243 U. S. 157,
243 U. S.
163-166 (1917);
Eustis v. Bolles, 150 U.
S. 361 (1893);
Murdock v.
Memphis, 20 Wall. 590 (1875).
[
Footnote 2/2]
As Justice Harlan wrote for the Court in
Mental Hygiene
Dept. v. Kirchner, 380 U. S. 194,
380 U. S. 198
(1965):
"[W]e would have jurisdiction to review only if the federal
ground had been the
sole basis for the decision, or the
State Constitution was interpreted under what the state court
deemed the compulsion of the Federal Constitution."
(Emphasis in original) (footnote omitted).
[
Footnote 2/3]
"[O]ur power is to correct wrong judgments, not to revise
opinions. We are not permitted to render an advisory opinion, and
if the same judgment would be rendered by the state court after we
corrected its views of federal laws, our review could amount to
nothing more than an advisory opinion."
Herb v. Pitcairn, supra, at
324 U. S. 126.
Accord, Minnick v. California Dept. of Corrections,
452 U. S. 105,
452 U. S.
120-123 (1981);
Rescue Army v. Municipal Court,
331 U. S. 549,
331 U. S.
568-569 (1947);
United States v. Hastings,
296 U. S. 188,
296 U. S. 193
(1935).
The policy of avoiding advisory opinions on federal
constitutional issues is a consistent theme throughout our
jurisprudence.
Paschall v. Christie-Stewart, Inc.,
414 U. S. 100
(1973) (per curiam), is especially instructive. In that case, our
independent review of the record turned up a state ground
supporting the Supreme Court of Oklahoma's judgment that had not
even been
mentioned in the state court's opinion.
Observing that, if the argument proved solid, "any decision by this
Court would be advisory and beyond our jurisdiction," we remanded
for analysis of the state law claim.
Id. at
414 U. S.
102.
Even in cases arising through the federal courts, we have always
been alert to opportunities to avoid federal constitutional issues
by means of a state law disposition.
E.g., Mills v.
Rogers, 457 U. S. 291,
457 U. S.
302-306 (1982);
City of Mesquite v. Aladdin's
Castle, Inc., 455 U. S. 283,
455 U. S.
294-295 (1982);
Siler v. Louisville & Nashville
R. Co., 213 U. S. 175
(1909).
See generally Hagans v. Lavine, 415 U.
S. 528,
415 U. S.
546-547, and nn. 12-13 (1974).
[
Footnote 2/4]
The burden is on the petitioner or appellant to establish our
jurisdiction. We have therefore regularly dismissed cases when the
state judgment might have rested on an independent and adequate
state ground.
E.g., Durley v. Mayo, 351 U.
S. 277,
351 U. S. 285
(1956);
Stembridge v. Georgia, 343 U.
S. 541,
343 U. S. 547
(1952);
Lynch v. New York ex rel. Pierson, supra; Johnson v.
Risk, 137 U. S. 300
(1890).
[
Footnote 2/5]
The South Dakota Supreme Court was speaking on remand from this
Court. The state court had previously held certain police conduct
unconstitutional, relying solely on the Fourth Amendment to the
Federal Constitution.
State v. Opperman, 89 S.D. 25,
228 N.W.2d
152 (1975). This Court had reversed.
South Dakota v.
Opperman, 428 U. S. 364
(1976). The passage in text is excerpted from the South Dakota
Supreme Court's reaffirmation of the rationale of its prior
opinion, relying on the State Constitution. In reaching its
conclusion, the court noted that the language of the relevant state
provision "is almost identical to that found in the Fourth
Amendment," 247 N.W.2d at 674, and was unmoved by the prosecutor's
observation that the defendant had not argued in his first appeal
that state and federal law were different,
id. at 675.
[
Footnote 2/6]
After quoting a footnote from our opinion in
Schmerber v.
California, 384 U. S. 757,
384 U. S.
761-762, n. 6 (1966), the South Dakota Supreme Court
stated:
"This footnote indicates that
Schmerber was decided in
light of the more liberal definition of 'evidence' as used in our
state constitution. Since the Fifth Amendment of the U.S.
Constitution is broad enough to exclude this evidence, there is no
need to draw a distinction at this time between S.D. Const. art.
VI, § 9 and the Fifth Amendment of the U.S. Constitution."
312 N.W.2d at 726, n.
[
Footnote 2/7]
In
Delaware v. Prouse, 440 U.
S. 648,
440 U. S.
661-653 (1979), we did not so interpret the opinion of
the Delaware Supreme Court. Although I must confess that I now have
some misgivings about our reaching that conclusion without further
clarification,
see 459
U.S. 553fn2/8|>n. 8,
infra, there was far more
indication in that case than in this one that the state court's
analysis was contingent on the correctness of its understanding of
federal law. The opinion there began with a statement that the
police stops "violate Federal and State constitutional guarantees,"
State v. Prouse, 382 A.2d
1359, 1361 (1978), but then went on to say that the State and
Federal Constitutions are "substantially similar," and that "a
violation of the latter is necessarily a violation of the former,"
id. at 1362. The opinion drew to a close with the
statement:
"We hold, therefore, that a random stop of a motorist [absent
reasonable suspicion] is constitutionally impermissible and
violative of the Fourth and Fourteenth Amendments to the United
States Constitution."
Id. at 1364.
[
Footnote 2/8]
In cases where an apparent adequate state ground was arguably
not independent, this Court has occasionally vacated the state
court judgment and remanded for clarification of the basis for the
decision.
E.g., Air Pollution Variance Board v. Western Alfalfa
Corp., 416 U. S. 861,
416 U. S. 866
(1974);
California v. Krivda, 409 U. S.
33 (1972);
Mental Hygiene Dept. v. Kirchner,
380 U. S. 194
(1965);
Minnesota v. National Tea Co., 309 U.
S. 551 (1940);
State Tax Comm'n v. Van Cott,
306 U. S. 511
(1939).
Cf. Herb v. Pitcairn, 324 U.
S. 117 (1945) (case held while parties sought a
certificate from the state court clarifying the basis for
judgment). The Court should, at the very least, follow that course
today.
"[I]n cases where the answer is not clear to us, it seems
consistent with the respect due the highest courts of states of the
Union that they be asked, rather than told, what they have
intended."
Id. at
324 U. S.
127-128.
Some of us have pointed out that even this practice may be
overused, because it "tak[es] from appellants the normal burden of
demonstrating that we have jurisdiction and plac[es] it on the
Supreme Court of [the State]."
Philadelphia Newspapers, Inc. v.
Jerome, 434 U. S. 241,
434 U. S. 244
(1978) (REHNQUIST, J., joined by STEVENS, J., dissenting).
See
also Department of Motor Vehicles of California v. Rios,
410 U. S. 425,
410 U. S.
427-430 (1973) (Douglas, J., joined by BRENNAN, Stewart,
and MARSHALL, JJ., dissenting).