Cox v. People

• Decision Date: 16 March 1987
• Docket Number: Nos. 85SC160,85SC465,s. 85SC160
• Citation: 735 P.2d 153
• Parties: Glen Eugene COX, Petitioner, v. The PEOPLE of the State of Colorado, Respondent. Albert J. QUIMING, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

Page 153

735 P.2d 153

Glen Eugene COX, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

Albert J. QUIMING, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

Nos. 85SC160, 85SC465.

Supreme Court of Colorado En Banc.

March 16, 1987.

David F. Vela, Colorado State Public Defender, William S. Schurman, Deputy State Public Defender, Steamboat Springs, for petitioner No. 85SC160.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Nathan B. Coats, Deputy Atty. Gen., Eric Perryman, Asst. Atty. Gen., Denver, for respondent No. 85SC160.

David F. Vela, Colorado State Public Defender, Jeri Shepherd, Deputy State Public Defender, Pueblo, for petitioner No. 85SC465.

G.F. Sandstrom, Dist. Atty., Vincent J. Gratton, Deputy Dist. Atty., Pueblo, for respondent No. 85SC465.

DUBOFSKY, Justice.

We granted separate petitions for certiorari to review decisions of the Routt County District Court and the Pueblo County District Court affirming county court rulings that admission of evidence at trial of a defendant's refusal to take a blood or breath alcohol test does not violate a defendant's state constitutional privilege against self-incrimination and that failure to warn a defendant that refusal to take the test would be admissible at trial does not violate a defendant's state constitutional right to due process. ¹ We also granted certiorari to consider whether one of the trial courts erred in admitting the evidence of refusal as relevant and not unduly prejudicial and the other erred in instructing the jury that evidence of refusal could be used along with other evidence to determine a defendant's guilt or innocence. We affirm the judgments of the district courts.

Shortly after midnight on November 16, 1983, a Routt County deputy sheriff followed a pickup truck for a mile and watched the truck, being driven by the defendant Glen Eugene Cox, weave on to the shoulder of the road four times. The officer stopped the truck, determined that Cox had the odor of an alcoholic beverage on his breath, and gave Cox a roadside sobriety test, which he failed. The officer advised Cox that he must submit to a blood or breath test and that refusal to take the test would result in revocation of his driver's license. Cox replied, "No test. I'm not going to take any test." Cox was not advised that his refusal to take the test could be introduced as part of the evidence against him at trial. ² Cox was charged with driving under the influence of intoxicating liquor as proscribed by section 42-4-1202(1)(a), 17 C.R.S. (1984). Before trial he moved to exclude evidence of his refusal to take the test. The Routt County Court denied his motion without comment, and the district attorney presented evidence of Cox's refusal to the jury. The jury found him guilty of driving while ability impaired. § 42-4-1202(1)(b), 17 C.R.S. (1984).

Albert J. Quiming, the defendant in the companion case, was charged with driving under the influence of intoxicating liquor, § 42-4-1202(1)(a), 17 C.R.S. (1984); careless driving, § 42-4-1204, 17 C.R.S. (1984); and operating a vehicle without insurance, § 42-4-1213(1), 17 C.R.S. (1984), after he ran his pickup truck off the street and into a chain link fence in Pueblo on February 25, 1984. Quiming was not injured, but he neither responded to nor cooperated with Pueblo police officers. The officers smelled an alcoholic beverage on Quiming's breath and discovered a bottle containing some whiskey in his pocket. One of the officers asked Quiming to take a blood or breath test. The officer explained to Quiming that he would lose his license if he refused. Quiming was not advised that his refusal to take the test could be used against him in court. Over Quiming's objection, the district attorney introduced as evidence at trial Quiming's refusal to take the test, and the court instructed the jury, again over objection, as follows:

If a person refuses to submit to such chemical test, then the jury may consider such refusal along with all other competent evidence in determining the Defendant's guilt or innocence.

The jury found Quiming guilty of all charges. The district courts for Routt County and Pueblo County affirmed the county court decisions in both cases.

I.

Section 42-4-1202(1), 17 C.R.S. (1984), makes it a misdemeanor for a person to drive a vehicle while under the influence of intoxicating liquor. Section 42-4-1202(3)(a)(II) provides:

Any person who drives any motor vehicle upon the streets and highways and elsewhere throughout this state may be required to submit to a chemical test of his breath or blood for the purpose of determining the alcohol content of his blood or breath, if arrested for any misdemeanor offense arising out of acts alleged to have been committed while the person was driving a motor vehicle in violation of subsection (1) or (1.5) of this section.

Subsection (3)(d) provides that if a person refuses to take a chemical test as provided in subsection (3)(a), he is subject to license revocation. Subsection (3)(e) provides:

If a person refuses to submit to chemical tests as provided in this subsection (3) and such person subsequently stands trial for a violation of subsection (1) of this section, the refusal to submit to any test shall be admissible into evidence at the trial, and a person may not claim the privilege against self-incrimination with regard to admission of refusal to submit to a chemical test.

The defendants claim that the statute allowing use of the refusal as evidence violates the privilege against self-incrimination as guaranteed by article II, section 18 of the Colorado constitution. The defendants do not base their argument on the United States constitution because in South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983), the United States Supreme Court held that the use of a refusal to take a chemical test as evidence at trial is not a violation of the fifth amendment privilege against self-incrimination. ³ The Court ruled 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." 459 U.S. at 564, 103 S.Ct. at 922.

Cox contends that the Colorado constitutional privilege against self-incrimination provides broader protection, ⁴ relying on language in Vigil v. People, 134 Colo. 126, 300 P.2d 545 (1956) (defendant argued that he should not have been required to wear a mask at robbery trial in order for witnesses to identify him), in which this court held that the privilege against self-incrimination does not apply to real evidence. The court commented,

Our Constitution protects one against an admission of guilt coming from his own lips under compulsion and against the will of the accused, and has no relation whatever to real as distinguished from testimonial evidence.

Id. at 547. The language that Cox relies on is consistent with the United States Supreme Court's interpretation of the fifth amendment in Neville. Cox does not articulate any difference of significance between the fifth amendment and article II, section 18 of the Colorado constitution. Instead, he relies on State v. Andrews, 297 Minn. 260, 212 N.W.2d 863 (1973), cert. denied, 419 U.S. 881, 95 S.Ct. 146, 42 L.Ed.2d 121 (1974), in which the Minnesota Supreme Court held that refusal to take the test was inadmissible because it violated the defendant's privilege against self-incrimination protected by the Minnesota constitution as well as by the fifth amendment. After the decision in Neville the Minnesota Supreme Court, without overruling Andrews, held that introduction of the absence of a blood test in accordance with statutory authority does not violate the defendant's privilege against self-incrimination, State v. Willis, 332 N.W.2d 180 (Minn.1983), and the Minnesota legislature amended its statute to allow evidence of the refusal to take a test to be introduced at trial, Abe v. Commissioner of Public Safety, 374 N.W.2d 788 (Minn.App.1985). Thus, according to the Minnesota Court of Appeals, Andrews is no longer controlling law. Connor v. Commissioner of Public Safety, 386 N.W.2d 242 (Minn.App.1986). In the absence of any precedent to the contrary, we see no reason to interpret the privilege against self-incrimination in the context of this case other than as the United States Supreme Court interpreted it in Neville. A refusal to take a blood or breath test when a police officer has lawfully requested it is not compelled testimony entitled to protection under the Colorado constitution.

Quiming asks us to hold that refusal to take a blood or breath test is communication of the thoughts and mental processes of the accused and therefore protected by the privilege against self-incrimination because the refusal is testimonial evidence. Prior to Neville, a few state courts had held that a refusal to take the test was testimonial. Andrews, 297 Minn. 260, 212 N.W.2d 863; State v. Neville (Neville II), 346 N.W.2d 425 (S.D.1984); State v. Neville (Neville I), 312 N.W.2d 723, 726 (S.D.1981), rev'd, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983); Dudley v. State, 548 S.W.2d 706 (Tex.Cr.App.1977). ⁵ The majority rule before Neville, as stated by 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, 88 S.Ct. 43, 19 L.Ed.2d 119 (1967), and People v. Ellis, 65 Cal.2d 529, 55 Cal.Rptr. 385, 421 P.2d 393 (1966), was that refusal to take the test was conduct similar to other circumstantial evidence of consciousness of guilt, such as escape from custody, or destruction of evidence, and not subject to protection under the privilege against self-incrimination.

In Neville, the Court declined to base its holding on whether refusal to take a test was testimony or conduct. 459 U.S. at 561, 103 S.Ct. at 921....