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U.S. Supreme Court
SOUTH DAKOTA v. NEVILLE 522 U.S. 136 (1997)

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, id., at 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.


  1. 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. 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 Respondent did not have a driver's license, and informed the officers that it was revoked after a previous driving-while-intoxicated conviction.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. Respondent acknowledged that he understood his rights and agreed to talk without a lawyer present. 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. Respondent refused to take the test, stating "I'm too drunk, I won't pass the test." The officers again read the request to 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.

    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 non-residence 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 non-residence driving privilege shall be revoked. If your driver's license or non-residence 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?"

    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."

    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. 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, 312 N.W.2d 723 (S.D.1981) affirmed the suppression of the act of refusal on the grounds that § 32-23-10.1, which allows the introduction of this evidence, violated the federal and state privilege against self-incrimination. The court reasoned that 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 testimonial evidence against himself,' " 312 N.W.2d, at 726 (quoting State v. Andrews, 297 Minn. 260, 262, 212 N.W.2d 863, 864 (1973), cert. denied, 419 U.S. 881(1974)).

    S.D.Comp.Laws Ann. § 19-13-28.1 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.

    Since other jurisdictions have found no Fifth Amendment violation from the admission of evidence of refusal to submit to blood-alcohol tests, we granted certiorari to resolve the conflict.