Deering v. Brown, 86-3548

• Decision Date: 04 February 1988
• Docket Number: No. 86-3548,86-3548
• Citation: 839 F.2d 539
• Parties: , 24 Fed. R. Evid. Serv. 1086 Larry DEERING, Petitioner-Appellant, v. Harold M. BROWN, Attorney General of the State of Alaska, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 539

839 F.2d 539

56 USLW 2482, 24 Fed. R. Evid. Serv. 1086

Larry DEERING, Petitioner-Appellant, v. Harold M. BROWN, Attorney General of the State of Alaska Respondent-Appellee.

No. 86-3548.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 1, 1987.

Decided Feb. 4, 1988.

Richard G. Haggart, Birch, Horton, Bittner, Pestinger & Anderson, Anchorage, Alaska, for petitioner-appellant.

Cynthia M. Hora, Asst. Atty. Gen., Anchorage, Alaska, Harold M. Brown, Atty. Gen., Juneau, Alaska, for respondent-appellee.

Appeal from the United States District Court for the District of alaska.

Before POOLE, FERGUSON and CANBY, Circuit Judges.

POOLE, Circuit Judge:

INTRODUCTION

The fifth amendment "guarantees ... the right of a person to remain silent unless he chooses to speak in the unfettered expression of his own will, and to suffer no penalty ... for such silence." Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489, 1493-94, 12 L.Ed.2d 653 (1964). In Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the United States Supreme Court ruled that the fifth amendment protects an accused only from being compelled to testify against himself or otherwise provide the state with evidence of a testimonial or communicative nature. The Court then concluded that, because the results of a blood alcohol "breathalyzer" test are physical rather than testimonial or communicative evidence, a state has the power to administer such a test against a defendant's will without infringing on his fifth amendment privilege.

More recently in South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983) the Court addressed a question reserved in Schmerber, that is, whether, in order to prove a charge of driving under the influence of alcohol, the admission into evidence of a defendant's refusal to submit to a breathalyzer test violated his fifth amendment right against self-incrimination. The court reasoned that because it gave him the choice of submitting to the test or refusing, the state did not directly compel the defendant to refuse the test. Id. at 562-64, 103 S.Ct. at 922-23. ¹ The choice between submitting to a blood test which legitimately could have been compelled under Schmerber, or, alternatively, having the refusal used as evidence in court, was not so coercive as to amount to compulsion in violation of the fifth amendment. Id. at 563-64, 103 S.Ct. at 922-23. The fact that refusal was accompanied by the civil penalty of license revocation did not affect the Court's conclusion. Id. at 563, 103 S.Ct. at 922.

The case before us goes one step further. We are presented with the novel question of the application of the Neville rationale to the unusual situation in which a state has made refusal to submit to a breathalyzer test a separate criminal offense, itself punishable by a minimum sentence of three days in jail. Whether such use of a refusal to take a test for intoxication violates the fifth amendment's guarantee against self incrimination is a question of first impression in this circuit, and apparently has been addressed by no other federal court. ²

FACTS

On November 22, 1982, appellant Larry Deering was arrested by an Alaska state trooper for operating a vehicle while intoxicated. Deering was advised of his Miranda rights both before and after being Deering was subsequently charged with driving while intoxicated (DWI), Alaska Stat. Sec. 28.35.030(a), and with refusal to take a breathalyzer test, Alaska Stat. Sec. 28.35.032(f). Both violations are criminal "class A" misdemeanors in Alaska, carrying maximum penalties of one year in prison and a fine of $1000. Both also require minimum sentences upon conviction of three days in prison. ³

taken to the police station. At the station, Deering was asked by the arresting officer if he would submit to a breathalyzer test. He did not respond. The officer told Deering that refusal to take the test constituted a criminal misdemeanor, and further warned Deering that if he did not respond, his silence would be deemed a refusal. Deering remained silent.

At his jury trial, Deering's silent refusal was used as evidence supporting both charges. The trial court denied Deering's motions to suppress the refusal as violative of his fifth amendment rights, and Deering was found guilty of both offenses. After the Court of Appeals affirmed Deering's conviction and the Alaska Supreme Court refused to hear his appeal, ⁴ Deering filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254 in the United States District Court for the district of Alaska, alleging, as he had below, that the state proceedings violated his fifth amendment rights against self incrimination. The district court denied the petition and issued a certificate of probable cause pursuant to Fed.R.App.P. 22(b). Deering timely appealed.

Where, as here, the facts are undisputed, the denial of a habeas corpus petition is reviewed de novo. Burnett v. Municipality of Anchorage, 806 F.2d 1447, 1449 (9th Cir.1986).

I. Did Admission of Deering's Refusal Violate the Fifth Amendment?

A. Was Deering's refusal a "testimonial" communication?

As we mentioned above, in order to merit the protections of the fifth amendment privilege against self incrimination, a defendant's evidence must be both "compelled" by the state and of a "testimonial" or "communicative" nature. See Schmerber, 384 U.S. at 764, 86 S.Ct. at 1832. We turn first to the question whether Deering's refusal constituted "testimonial" evidence within the context of the crimes charged.

First, this circuit has clearly held that the refusal to take a blood-alcohol test, in the context of a charge of driving while intoxicated, is nontestimonial conduct indicating a consciousness of guilt, Newhouse v. Misterly, 415 F.2d 514, 518 (9th Cir.1969), cert. denied, 397 U.S. 966, 90 S.Ct. 1001, 25 L.Ed.2d 258 (1970). Thus it is clear that the state's use of Deering's refusal in proving the DWI charge was nontestimonial and does not implicate the fifth amendment.

Deering argues, however, that in the context of the separate criminal charge of breathalyzer refusal, his refusal to take the test was somehow transformed into a "testimonial" statement. He argues that, because the breathalyzer test is the subject of a distinct criminal charge in Alaska, the effects of refusal in these circumstances are qualitatively different from those in cases where the charge is DWI, in which an arrestee's answer to police questions could at most provide inferrential evidence as to the related charge. Because refusal is criminalized, Deering suggests, the police We find this contention, although appealing at first blush, ultimately unpersuasive. That the refusal is itself an element of this crime, rather than merely evidence of an element of the crime (as it is in the case of the DWI charge), does not transform the nature of the refusal itself. Alaska's refusal statute is closely analogous to a criminal contempt penalty for violating a court order to produce nontestimonial evidence. Just as a defendant facing a court order to produce nontestimonial evidence has no constitutional right to refuse the order, In re Braughton, 520 F.2d 765, 767 (9th Cir.1975) (request for handwriting exemplar), so Deering had no right to refuse the police request for a breathalyzer test. Burnett v. Municipality of Anchorage, 806 F.2d 1447, 1450 (9th Cir.1986). And just as the imposition of criminal contempt penalties does not transform the refusal to obey a court order regarding nontestimonial evidence into a testimonial communication with respect to the contempt charge, cf. United States v. Hammond, 419 F.2d 166, 168 (4th Cir.1969) (court order to appear in lineup wearing goatee, backed by criminal contempt charge, does not violate fifth amendment), cert. denied, 397 U.S. 1068, 90 S.Ct. 1508, 25 L.Ed.2d 690 (1970), neither does the imposition by the State of Alaska of a criminal penalty for refusal to provide the state with the physical evidence of a breathalyzer test--beyond the civil penalty of license revocation clearly condoned in Neville --qualitatively transform the refusal into testimony.

were demanding either a promise to take the test or, in his failure to perform, an "outright confession of guilt."

We acknowledge that some refusals are by nature more "testimonial" than others. Cf. Neville, 459 U.S. at 562, 103 S.Ct. at 921-22 (implying that a nonverbal refusal can be considered less "testimonial" than a verbal refusal combined with a statement of the reason for the refusal). As in the case of a failure to obey a court order in order to prove a criminal contempt charge, evidence of Deering's refusal was not used for the testimonial or communicative content conveyed by his act of refusal (e.g., "I'm refusing because I'm too drunk to pass"). Rather, it was used to show that he had not performed the physical act of actually taking the test when requested. Because the act of refusal was not used for testimonial purposes at trial but rather simply to convey that, indeed, Deering had not taken the test when requested, there was no fifth amendment violation. See Estelle v. Smith, 451 U.S. 454, 463, 101 S.Ct. 1866, 1873, 68 L.Ed.2d 359 (1981); United States v. Dionisio, 410 U.S. 1, 7, 93 S.Ct. 764, 768, 35 L.Ed.2d 67 (1973).

B. Was Deering's refusal "compelled"?

Even were we to find Deering's refusal to be in some respects "testimonial" with respect to the charge of refusal, we nonetheless conclude that it was not "compelled" for purposes of fifth amendment analysis. In Neville the Court relied on two related factors in finding that the state did not "compel" the defendant to incriminate himself when it gave him a choice between submitting to a blood-alcohol test or having the refusal used against him in court. ⁵ First, the Court noted that the state could legitimately compel a suspect to take a blood-alcohol test against the suspect's will. Neville,...