State v. Neville

¶1This case is before this court on remand from the United States Supreme Court. South Dakota v. Neville, 459 U.S. -, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983). State *427appealed a state circuit court order suppressing evidence of appellant Mason Henry Neville’s (Neville) refusal to submit to a blood-alcohol test and we affirmed. State v. Neville, 312 N.W.2d 723 (S.D.1981). The Supreme Court granted certiorari and reversed and remanded. We affirm in part, reverse in part, and remand our decision in State v. Neville, supra.

¶2On July 19, 1980, two Madison, South Dakota, police officers observed Neville’s failure to stop for a stop sign. The police officers stopped Neville and, after he failed at least two field sobriety tests, arrested him for driving while intoxicated. After advising Neville of his Miranda rights, the arresting officer asked him to submit to a blood-alcohol test. Neville refused to submit to the test, stating “I’m too drunk, I won’t pass the test.” Neville subsequently moved to suppress any and all evidence of his refusal and the circuit court ordered the evidence of his refusal suppressed. We affirmed, holding that SDCL 32-23-10.11 violated both the federal and state constitutions. The Supreme Court held that this statute does not violate the federal constitution and reversed and remanded for proceedings not inconsistent with its opinion. We now review this case on remand.2

¶3In examining South Dakota v. Neville, supra, we will focus upon three issues: (1) Whether a refusal to take a blood test is physical or testimonial evidence and, if the former, not protected by the privilege against self-incrimination; (2) whether physical or moral coercion which is impermissible under the protection against self-incrimination was involved; and (3) whether the warning given to Neville met due process requirements.

¶4Initially, we address the issue of jurisdiction raised by the Supreme Court. It is well established that the Supreme Court will not take jurisdiction of a state court judgment that rests on an adequate and independent state ground. Herb v. Pitcairn, 324 U.S. 117, 65 S.Ct. 459, 89 L.Ed. 789 (1945). In its review of Neville, the Court found that although there was an adequate state ground for our decision, it did not “read the opinion as resting on an independent state ground.” 459 U.S. at -n. 5, 103 S.Ct. at 919 n. 5, 74 L.Ed.2d at 754 n. 5 (emphasis in original).

¶5As we stated in State v. Opperman, 247 N.W.2d 673 (S.D.1976), “[w]e have always assumed the independent nature of our state constitution regardless of any similarity between the language of that document and the federal constitution.” Id. at 674. Accord, People v. Pettingill, 145 Cal.Rptr. 861, 21 Cal.3d 231, 578 P.2d 108 (1978); People v. Williams, 93 Misc.2d 93, 402 N.Y.S.2d 289 (1978); Miller v. State, 584 S.W.2d 758 (Tenn.1979). Although federal cases may be persuasive, they are not controlling. See, e.g., Redmond v. Ray, 268 N.W.2d 849 (Iowa 1978); Spector v. State, 289 Md. 407, 425 A.2d 197 (1981); Clark v. Uniroyal Corp., 119 Mich. App. 820, 327 N.W.2d 372 (1982); Neal v. School Dist. of York, 205 Neb. 558, 288 N.W.2d 725 (1980); In re Clark, 281 S.E.2d 47 (N.C.1981).

¶6While the Supreme Court determined that evidence of an accused’s refusal to take a blood test does not infringe upon Fifth Amendment rights, their decision is not controlling of our decision herein. We alone determine the extent of protection afforded under our state constitution. Not only are we the final authority on interpre*428tation of our state constitution, but also, as stated by the Supreme Court, “[i]t is elementary that states are free to provide greater protections in their criminal justice system than the Federal Constitution requires.” California v. Ramos, 459 U.S. 1301, 103 S.Ct. 285, 74 L.Ed.2d 19 (1982) quoted in State v. Holmes, 338 N.W.2d 104 (S.D.1983); Opperman, supra; Reeves v. State, 599 P.2d 727 (Alaska 1979); Bierkamp v. Rogers, 293 N.W.2d 577 (Iowa 1980); People v. Hoshowski, 108 Mich.App. 321, 310 N.W.2d 228 (1981); State v. Flores, 280 Or. 273, 570 P.2d 965 (1977); Miller v. State, supra. Thus, as we stated in Opperman, supra,“we have the right to construe our state constitutional provision in accordance with what we conceive to be its plain meaning.” 247 N.W.2d at 674-75.

¶7We direct attention to the distinction between the state and federal constitutional provisions. Article VI, § 9 of the South Dakota Constitution states: “No person shall be compelled in any criminal case to give evidence against himself_” (Emphasis supplied.) 'In contrast, the Fifth Amendment to the United States Constitution states: “No person ... shall be compelled, in any criminal case, to be a witness against himself .... ” (Emphasis supplied.) The constitutions of twenty-four states protect a person from giving “evidence” against himself. Hansen v. Owens, 619 P.2d 315 (Utah 1980) (J. Stewart dissenting). See, e.g., Ariz. Const. art. II, § 10; Conn. Const. art. I, § 8; Ill. Const. art. I, § 10; Ky. Const. § 11; Maine Const. art. I, § 6; Miss. Const. art. Ill. § 26; Neb. Const. art. I, § 12; N.C. Const. art. I, § 23; Okla. Const. art. II, §§ 21, 27; Penn. Const. art. I, § 9; Utah Const. art. I, § 12.

¶8State court decisions interpreting these provisions are split as to whether there is a distinction arising out of the particular language employed. Some of these decisions note the difference but do not conclude there is a distinction. See, e.g., Hill v. State, 366 So.2d 318 (Ala.1979); In re Parker, 357 So.2d 508 (La.1978); State v. Tullo, 366 A.2d 843 (Me.1976). Other decisions conclude there is not a distinction, see, e.g., State v. Tsavaris, 382 So.2d 56 (Fla.App.1980); McCrory v. State, 342 So.2d 897 (Miss.1977), while others conclude there is a distinction. Hansen, supra; Clark v. State, 336 So.2d 468, aff'd 363 So.2d 331 (Fla.App.1976). As the majority opinion in Hansenstates,

the phrase “to give evidence against himself,” as used in our constitution, was intended to mean something different and broader than the phrase “to be a witness against himself” as used in the federal constitution.

¶9619 P.2d at 317. As the final authority on our state constitution, we now turn to examine our opinion in State v. Neville, supra.

¶10The question we address here is whether SDCL 32-23-10.1 is a violation of Neville’s state constitutional privilege against self-incrimination. As we stated in State v. Neville: “All presumptions are in favor of the constitutionality of a statute until the contrary is shown beyond a reasonable doubt. This presumption results in a heavy burden being placed on the assailant.” 312 N.W.2d at 725 (citations omitted).

¶11We first examine whether a refusal to take a blood test is physical or real evidence and accordingly is not protected by the privilege against self-incrimination. The privilege against self-incrimination extends only to communicative or testimonial evidence. Loveless v. State, 592 P.2d 1206 (Alaska 1979). It is generally accepted that real or physical evidence such as fingerprints, photographs and voice or handwriting samples are not protected by this privilege. See, e.g., Lusk v. State, 367 So.2d 1088 (Fla.App.1979); Anderson v. Com., 554 S.W.2d 882 (Ky.App.1977); State v. Sanders, 357 So.2d 1089 (La.1978). We note the majority of states whose constitutions contain the same language as ours, have concluded the privilege against self-incrimination does not apply to obtaining breathalyzer or other chemical evidence. See, e.g., Davis v. State, 174 Ind. App. 433, 367 N.E.2d 1163 (1977); State v. *429Smith, 359 So.2d 157 (La.1978); State v. Swayze, 197 Neb. 149, 247 N.W.2d 440 (1976); State v. Flannery, 31 N.C.App. 617, 230 S.E.2d 603 (1976). Our decisions agree. State v. Maher, 272 N.W.2d 797 (S.D.1978). As we stated in Maher, “the United States Supreme Court held in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the protection of the Fifth Amendment goes only to testimonial or communicative evidence and does not protect one from being compelled to produce nontestimonial evidence.” 272 N.W.2d at 799.

¶12Some courts have held that, since the testing of bodily evidence does not violate this privilege, testimony of refusal to give such evidence does not violate this privilege. State v. Smith, supra.The reasoning utilized in reaching this conclusion is that refusal to submit is a physical act rather than a communication and thus not protected by this privilege. Hill v. State, supra. We disagree.

¶13In State v. Neville, supra, we concluded that under our state constitution a defendant’s refusal may be characterized as communicative evidence. In examining this issue in Neville, the Supreme Court recognized 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,” 459 U.S. at -, 103 S.Ct. at 922, 74 L.Ed.2d at 757, but refused to address this issue. As we stated in State v. Neville, supra, “[a] defendant’s silence or refusal to submit to a requested blood test is a tacit or overt expression and communication of defendant’s thoughts.” 312 N.W.2d at 726. See Dudley v. State, 548 S.W.2d 706 (Tex.Cr.App.1977). On review, we agree with this, our previous statement. Accordingly, we affirm our holding in State v. Neville, supra, that Neville’s refusal to submit to a blood test is evidence of a testimonial nature and thus within the protection of the privilege against self-incrimination.

¶14We now must examine whether impermissible coercion was involved for purposes of applying the privilege against self-incrimination. The rule against impermissible coercion is founded upon the language of our state constitution, which provides: “No person shall be compelled in any criminal case to give evidence against himself _” S.D. Const. art. VI, § 9 (emphasis supplied). This provision does not prohibit all self-incriminating evidence; it prohibits only that communicative or testimonial evidence that has been compelled. In State v. Neville, supra, we agreed with the rationale of the Minnesota Supreme Court in State v. Andrews, 297 Minn. 260, 212 N.W.2d 863 (1973), and held that the state compelled Neville to produce the testimonial evidence of his refusal to take the test. Upon re-examination of our holding, we take the contrary view.

¶15Compulsion proscribed by our constitution includes both physical and moral compulsion exerted by the State. Physical compulsion is not in issue here. Moral compulsion may be exerted by the State attaching a penalty, punishment, or detriment for the selection of the alternate course of action where no other justification exists for such imposition and of which the defendant is therefore entitled to be free. If a defendant produces self-incriminating evidence to escape unwarranted consequences, that evidence is considered compelled and thus constitutionally inadmissible. People v. Thomas, 46 N.Y.2d 100, 412 N.Y.S.2d 845, 385 N.E.2d 584 (1978).

¶16For example, it is impermissible to comment on a defendant’s failure to take the witness stand during criminal trial, which is the alternative to silence. The alternative to silence is submission to interrogation under oath by the prosecution likely resulting in either giving testimony against himself or perjuring himself. Commenting on a defendant’s silence would impose a penalty for exercising a constitutional privilege. Thomas, 412 N.Y.S.2d at 849, 385 N.E.2d at 588.

¶17But Thomasdistinguishes between such impermissible compulsion and the *430compulsion present in this case, where the issue is admissibility of the refusal. The statutory scheme of the legislation originally enacted in 1959, 1959 S.D.Sess.L. ch. 264 § 1, and as recently amended in 1983, 1983 S.D.Sess.L. ch. 224 § 5, is to compel the defendant to take the test. A refusal now has two penalties: (1) the license revocation as originally prescribed, SDCL 32-23-10, and (2) the disclosure of refusal in the prosecution. SDCL 32-23-10.1. The alternative to refusal is the option to submit to the test, which option would involve no penalty or consequences. Prior to the 1982 amendment, this court had long recognized the existence of the choice available to the arrested driver as between submission the test or forfeiture of license:

Implicit in our implied consent statute, however, is the right to refuse to submit to a test "and, a fortiori, the requirement that a choice be made between submitting to the test or suffering the consequences of such refusal. Also implicit in the implied consent law is the assumption that the choice to be made is of considerable importance to the arrested driver.

¶18State v. Buckingham, 90 S.D. 198, 204-5, 240 N.W.2d 84, 87 (1976) (citations omitted). See State v. Oswald, 90 S.D. 342, 241 N.W.2d 566 (1976). The fact that the option of refusing the blood-alcohol test now has an additional penalty for making that choice does not make that additional penalty impermissible coercion. Thus, since the conduct, i.e., the refusal which is the subject of the challenged evidence was not compelled and a defendant has, in fact, an option to submit to the test, the admission of this evidence is not prohibited by the constitutional protection against self-incrimination. Accordingly, SDCL 32-23-10.1 is constitutional in that it does not violate our state constitutional protection against self-incrimination. To that extent, we reverse our previous holding in State v. Neville, supra.

¶19Inherent, however, in this constitutional protection against self-incrimination and also the protection of due process 3 is the requirement that an arresting officer must fully inform a defendant driver of the consequences of a refusal to submit to a blood-alcohol test. See, e.g., People v. Thomas, supra; State v. Buckingham, supra; Chmelka v. Smith, 81 S.D. 40, 130 N.W.2d 423 (1964). Below, the arresting officer informed Neville of the Miranda warnings4 but then only partially informed him of the consequences attendant to the refusal of the request for submission to a blood-alcohol test.5 The arresting officer did not warn Neville that the test results could be used against him at trial. In its brief, State admits that “the Defendant should have been warned that his refusal *431could be used as evidence in a subsequent DWI trial ...” but argues that this failure did not violate Neville’s due process rights. We disagree. The very consequence of which the arresting officer failed to warn Neville is that consequence which the State now seeks to impose. Since Neville was not fully informed of this consequence, he did not voluntarily, knowingly and intelligently waive his constitutional protection of due process and prohibition against self-incrimination. Accordingly, we affirm the trial court’s holding that Neville’s refusal to submit to the blood-alcohol test is inadmissible.

¶20In State v. Neville, supra, we remanded to the trial court the determination of the admissibility of Neville’s response “I’m too drunk, I won’t pass the test.” We now reconsider that remand in light of our preceding decision on due process. Under the circumstances before us in this particular case, where Neville made this statement in response to the police officer’s request to submit to the blood-alcohol test, the admissibility of this statement is inextricably intertwined with the admission of Neville’s refusal to take the test. As previously noted the police officer failed to warn Ne-ville of all the consequences of his refusal. In refusing to take the test, Neville made the statement which the State now seeks to admit. Since the statement contains the substance of Neville’s refusal to submit to the test, admission of the statement would contradict our holding above that Neville’s refusal to submit to the test must be suppressed for failure to adequately advise him. We affirm the trial court’s holding that this statement is inadmissible.

¶21We affirm in part and reverse in part our previous decision in State v. Neville, supra, and remand to the trial court for further proceedings.