LAWS PAGES

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

  1. 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, 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 (1971) (BLACKMUN, J., concurring) (deploring "traffic irresponsibility and the frightful carnage it spews upon our highways"); Perez v. Campbell, 402 U.S. 637, 657 and 672 (1971) (BLACKMUN, J., concurring) ("The slaughter on the highways of this Nation exceeds the death toll of all our wars"); Mackey v. Montrym, 443 U.S. 1, 17-18 (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. 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. 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. 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 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.

    Schmerber, then, clearly allows a State to force a person suspected of driving while intoxicated to submit to a blood alcohol test. 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 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. 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. S.D.Comp.Laws Ann. § 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, 443 U.S. 1 (1979).

    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 760, n. 4.

    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 19-13-28.1. Schmerber expressly reserved the question of whether evidence of refusal violated the privilege against self- incrimination. 384 U.S., at 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 (1965), should control the inquiry. Ibid.

    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.

    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, 55 Cal.Rptr. 393, 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 privilege. As Justice Traynor explained more fully in the companion case of People v. Ellis, 65 Cal.2d 529, 55 Cal.Rptr. 385, 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.Cr.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," State v. Neville, 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, 548 S.W.2d, at 708.

    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 Ct, 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).

    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 764. The situations arising from a refusal present a difficult 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.

    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 764. See also People v. Ellis, 65 Cal.2d, at 537, and n. 9, 55 Cal.Rptr., at 389, and n. 9, 421 P.2d, at 397, and n. 9 (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.

    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 Or.App. 663, 629 P.2d 412 (1981); State v. Brean, 136 Vt. 147, 385 A.2d 1085 (1978).

    As we stated in Fisher v. United States, 425 U.S. 391, 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." W. 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 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 Commission, 378 U.S. 52, 55 (1964). See also New Jersey v. Portash, 440 U.S. 450, 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." Schmerber, 384 U.S., at 765, n. 9. Cf. Miranda v. Arizona, 384 U.S. 436, 458 (1966) (unless compulsion inherent in custodial surroundings is dispelled, no statement is truly a product of free choice).
    14. Nothing in the record suggests that respondent made or could sustain such a claim in this case.

    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 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 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, 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.
    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, 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).