American Fork City v. Crosgrove, 19174

• Decision Date: 04 June 1985
• Docket Number: No. 19174,19174
• Citation: 701 P.2d 1069
• Parties: AMERICAN FORK CITY, Plaintiff and Respondent, v. Louis L. CROSGROVE, Defendant and Appellant.
• Court: Utah Supreme Court

Page 1069

701 P.2d 1069 AMERICAN FORK CITY, Plaintiff and Respondent,
v.
Louis L. CROSGROVE, Defendant and Appellant. No. 19174. Supreme Court of Utah. June 4, 1985.

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Sheldon R. Carter, Provo, for defendant and appellant.

Rollin Thorley, American Fork, for plaintiff and respondent.

DURHAM, Justice:

The defendant Crosgrove was convicted in the circuit court for Utah County of driving under the influence of alcohol in violation of U.C.A., 1953, § 41-6-44 (Supp.1982). The district court sustained the conviction. The defendant alleges on appeal that the results of a breathalyzer test he was required to take should have been suppressed and that his conviction should be reversed.

The facts are not disputed. On April 17, 1982, the defendant was arrested for driving under the influence of alcohol. He was taken to the American Fork City Police Department, where he was asked to take a breathalyzer test. At first he refused, but he submitted to the test when the officer told him that his refusal could result in the loss of his driver's license under Utah's implied consent statute, U.C.A., 1953, § 41-6-44.10 (Supp.1981). At the defendant's trial, evidence of the results of the breathalyzer test was admitted over the defendant's objection.

Utah's implied consent statute provides that any person who operates a motor vehicle in the state has given his consent to a chemical test of his sobriety. If a motorist refuses a test, his driver's license is revoked for one year and evidence of his refusal to take the test is admissible in any civil or criminal action against the motorist arising out of the incident of his driving under the influence of alcohol.

The sole issue on appeal is whether a person who submits to a breathalyzer examination under the threat of having his driver's license revoked has been "compelled to give evidence against himself" in violation of article I, section 12 of the Utah Constitution. We note initially that, of all the jurisdictions that have considered the question under similar constitutional provisions, the great majority have held that compulsory chemical tests to determine intoxication do not violate the privilege against self-incrimination. ¹ The defendant maintains, however, that a contrary result

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is mandated by our decision in Hansen v. Owens, Utah, 619 P.2d 315 (1980).

As a threshold argument, American Fork City asserts that there was no "compulsion" in this case because the defendant was free to take the test or not, and he chose to take it (though had he chosen not to take the test he could have had his driver's license revoked, and the jury in any subsequent civil or criminal action could have drawn an unfavorable inference from evidence of his refusal; see U.C.A., 1953, § 41-6-44.10 (Supp.1981)).

Neither party has provided the Court with any legal analysis of this question in its briefs or cited any helpful case law. We shall therefore assume for the purposes of this case that the "choice" offered by the implied consent statute is sufficient compulsion to invoke article I, section 12. A state need not resort to torture to "compel" evidence.

The state might instead accept the refusal to answer but choose to impose a sanction rather than attempt to extract a response. The result is a far more dignified process, but one that is no less cruel. The imposition of harsh penalties in a gentlemanly manner can reflect as much inhumanity as the utilization of overt force. In fact, analytically both represent the same fundamental tactic of subjecting the suspect to the choice of responding or else.

M. Berger, Taking the Fifth: The Supreme Court and the Privilege Against Self-Incrimination 31 (1980). Historically, the compulsion against which the privilege was directed was not so much physical force but the risk of being found in contempt for refusing to answer or of having adverse inferences drawn from one's silence in court. We note with approval the following language from People v. Thomas, 46 N.Y.2d 100, 412 N.Y.S.2d 845, 849, 385 N.E.2d 584, 587 (1978):

Compulsion need not of course be physical; it may as well be accomplished by the State's attaching to the alternative course of action a penalty, punishment or detriment for the imposition of which no other justification exists and of which the defendant is therefore entitled to be free. If, to avoid that unwarranted threatened consequence, the defendant produces what is self-incriminating evidence, that evidence is fairly to be regarded as having been compelled and thus constitutionally inadmissible in a criminal proceeding against him.

The defendant in this case maintains that, having been compelled to take a breathalyzer test by the threat of the loss of his driver's license if he refused, he has been deprived of his rights under article I, section 12 of the Utah Constitution as construed by this Court in Hansen v. Owens, Utah, 619 P.2d 315 (1980).

In Hansen, the petitioner sought to enjoin enforcement of a lower court's order requiring him to furnish a handwriting sample for use in his criminal prosecution for forgery. This Court held that the order, which required the accused "to do the affirmative act of writing," violated the petitioner's rights under article I, section 12. Id. at 317 (emphasis added). However, the Court noted that the case "went beyond making observations ... of an accused's ... body, or ... substances obtained therefrom" and said that its decision was to be limited to its particular facts. Id. Therefore, in deciding whether to extend the "affirmative act" analysis of Hansen to breathalyzer tests, we must examine the underlying rationale for that decision.

The Court in Hansen noted that the type of evidence sought would not be privileged under the United States Constitution's self-incrimination provision, U.S. Const. amend. V. Hansen, 619 P.2d at 316. The United States Supreme Court has held that the fifth amendment privilege against self-incrimination "protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature...." Schmerber v. California, 384 U.S. 757, 761, 86 S.Ct. 1826, 1830, 16 L.Ed.2d 908 (1966) (footnote omitted; emphasis added). See also South Dakota

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v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983). It does not prevent the state from obtaining real or physical evidence from an accused without his consent. The Hansen Court further noted, however, that the Utah Constitution gives expression to the privilege against self-incrimination in language that is different from that used in the fifth amendment. The fifth amendment says that no person can be compelled "to be a witness against himself," whereas article I, section 12 of the Utah Constitution says, "The accused shall not be compelled to give evidence against himself." (Emphasis added.) It is a cardinal rule of construction that constitutions should be construed in light of their framers' intent. The Hansen Court reasoned that, since the Utah Constitution used different words to express the privilege, its framers must have meant the provision "to mean something different and broader than" its federal counterpart. 619 P.2d at 317.

This argument has little support in history, and as Justice Frankfurter noted with regard to the privilege against self-incrimination, "[A] page of history is worth a volume of logic." Ullmann v. United States, 350 U.S. 422, 438, 76 S.Ct. 497, 506, 100 L.Ed. 511 (1956), (quoting New York Trust Co. v. Eisner, 256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963 (1921)). In 1776, the common-law privilege against self-incrimination was first elevated to the status of a constitutional right in section 8 of Virginia's Declaration of Rights, which, like the Utah Constitution, provided that a man could not "be compelled to give evidence against himself." L. Levy, Origins of the Fifth Amendment: The Right Against Self-Incrimination 405-06 (1968). "[T]here is no evidence that [the provision] was taken literally or regarded as anything but a sonorous declamation of the common-law right of long standing." Id. at 409. This provision became a model for other state constitutions, at least six of which were adopted before the federal Bill of Rights. See id. at 409, 412. By the time the Utah Constitution was adopted in 1895, half the states that recognized the privilege...