Opinion of the Justices to the Senate

• Decision Date: 12 May 1992
• Citation: 412 Mass. 1201,591 N.E.2d 1073
• Parties: OPINION OF THE JUSTICES TO THE SENATE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1073

591 N.E.2d 1073

412 Mass. 1201

OPINION OF THE JUSTICES TO THE SENATE.

Supreme Judicial Court of Massachusetts.

May 12, 1992.

RESCRIPT.

On May 12, 1992, the Justices submitted the following answer to a question propounded to them by the Senate.

To the Honorable the Senate of the Commonwealth of Massachusetts:

The undersigned Justices of the Supreme Judicial Court respectfully submit their response to the question set forth in an order adopted by the Senate on February 4, 1992, and transmitted to this court on that day. The order recites that Senate No. 717, a bill pending before the General Court, entitled "An Act providing for the admissibility of the refusal to take a test for the chemical analysis of breath into evidence at criminal trials," provides that evidence that a defendant failed or refused to consent to a chemical test or analysis of his breath shall be admissible in a criminal proceeding and in certain actions by the Registrar of Motor Vehicles, and that grave doubt exists as to the constitutionality of the bill if enacted into law. The Act would amend G.L. c. 90, § 24(1)(e ) (1990 ed.), by striking out the second and third sentences and inserting in place thereof the following sentence: "Evidence that the defendant failed or refused to consent to such a test or analysis shall not be admissible in a civil proceeding but shall be admissible in a criminal proceeding, and shall be admissible in any action by the registrar under paragraph (f )."

The order presents to us the following question:

"Would the provisions of Senate No. 717 which permits a defendant's failure or refusal to submit to a chemical test or analysis of his breath to be admissible as evidence in a criminal proceeding violate the self-incrimination clause of Article XII of Part the First of the Constitution of the Commonwealth in that the defendant is therefore compelled to furnish evidence against himself?"

In South Dakota v. Neville, 459 U.S. 553, 564, 103 S.Ct. 916, 922, 74 L.Ed.2d 748 (1983), ¹ the United States Supreme Court

held that the admission in evidence of a refusal to submit to a breathalyzer test does not offend the Fifth Amendment to the United States Constitution. We recognize that courts of other jurisdictions, both before and since South Dakota v. Neville, supra, have considered the issue under the Fifth Amendment or analogous sections of their respective State Constitutions. ² There is no unanimity in their conclusions or their analytical approach to the issue. A majority of those courts has concluded, however, that the privilege against self-incrimination does not prohibit the introduction of evidence of a defendant's refusal to take a breathalyzer test. See 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) (Federal); Allen v. State, 254 Ga. 433, 330 S.E.2d 588 (1985); State v. Vietor, 261 N.W.2d 828 (Iowa 1978); State v. Cormier, 127 N.H. 253, 499 A.2d 986 (1985); State v. Tabisz, 129 N.J.Super. 80, 322 A.2d 453 (1974); People v. Thomas, 46 N.Y.2d 100, 412 N.Y.S.2d 845, 385 N.E.2d 584 (1978), appeal dismissed, 444 U.S. 891, 100 S.Ct. 197, 62 L.Ed.2d 127 (1979); State v. Gardner, 52 Or.App. 663, 629 P.2d 412 (1981) (Federal); State v. Meints, 189 Neb. 264, 202 N.W.2d 202 (1972) (Federal); State v. Neasbitt, 735 P.2d 337 (Okla.Crim.App.1987) (State and Federal); State v. Brean, 136 Vt. 147, 385 A.2d 1085 (1978) (State and Federal). See also Annot., Admissibility in Criminal Case of Evidence That Accused Refused to Take Test of Intoxication, 26 A.L.R.4th 1112, 1138-1139, 1144-1145 (1983 & Supp.1991).

A minority of courts has deemed such refusal evidence inadmissible. See State v. Anonymous, 6 Conn.Cir. 470, 276 A.2d 452 (1971) (Federal); State v. Munroe, 22 Conn.Sup. 321, 171 A.2d 419 (1961) (State and Federal); ³ Hovious v. Riley, 403 S.W.2d 17 (Ky.Ct.App.1966) (State and Federal; impermissible to comment on refusal); 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) (Federal); People v. Rodriguez, 80 Misc.2d 1060, 364 N.Y.S.2d 786 (Sup.Ct.1975) (Federal); State v. Adams, 162 W.Va. 150, 247 S.E.2d 475 (1978) (Federal). At least two courts do not permit the refusal to be used to prove intoxication. See State v. Pineau, 491 A.2d 1165, 1167 (Me.1985) (absence of test results admissible solely to explain absence and absence not considered on issue of intoxication); State v. Willis, 332 N.W.2d 180, 182 (Minn.1983) (evidence of absence of test is admissible under Federal Constitution but no inference can be drawn from absence). Two courts have ruled that a refusal to submit to a field sobriety test is inadmissible. See State v. Green, 68 Or.App 518, 524, 684 P.2d 575 (1984) (refusal to take field sobriety test inadmissible under State constitutional provision prohibiting compulsory self-incrimination, where there was no statutory or other legal requirement to take such test); Farmer v. Commonwealth, 10 Va.App. 175, 390 S.E.2d 775 (1990) (admission of refusal to submit to field sobriety test violates privilege under State Constitution). At least one court has upheld the admissibility of refusal evidence on a case-by-case basis. See Williford v. State, 653 P.2d 339, 342-343 (Alaska Ct.App.1982) (evidence of breathalyzer refusal in judge's discretion, if relevant, probative, and not excessively prejudicial), rev'd on other grounds, 674 P.2d 1329 (Alaska 1983).

Most courts that have permitted the use of refusal evidence have employed the same rationale as that applied in South Dakota v. Neville, supra. They have reasoned that, since a person's breath constitutes real or physical evidence rather than testimonial or communicative evidence, a defendant has neither a State nor Federal constitutional right to refuse to take a breathalyzer test. In reaching this conclusion, the State courts have construed their constitutional provisions as coextensive with that of the Fifth Amendment and have applied general Fifth Amendment principles to refusal evidence. See Hill v. State, 366 So.2d 318 (Ala.1979); State v. Neasbitt, 735 P.2d 337 (Okla.Crim.App.1987); State v. Neville, 346 N.W.2d 425 (S.D.1984). See also State v. Hoenscheid, 374 N.W.2d 128, 130 (S.D.1985) (refusal not testimonial; statute permitting admission of refusal evidence does not involve unconstitutional coercion). Some courts have concluded that the refusal is a physical act and therefore not entitled to any privilege. See Hill v. State, supra; People v. Sudduth, 65 Cal.2d 543, 55 Cal.Rptr. 393, 421 P.2d 401 (1966). Others have concluded that the refusal is testimonial but, since it is not compelled or coerced, the refusal is admissible in evidence. See State v. Neville, supra. Still others choose not to decide whether refusal evidence is either testimonial or physical evidence. See South Dakota v. Neville, supra 459 U.S. at 561-562, 103 S.Ct. at 921-22. Instead they conclude that, since the right to refuse is granted by the statute, the Legislature may condition the exercise of that right by making the refusal admissible in a criminal proceeding. See State v. Neasbitt, supra (right to refuse matter of "legislative grace"; refusal not coerced therefore not protected by the privilege against self-incrimination under Federal and State Constitutions); State v. Gardner, supra 52 Or.App. at 669-670, 629 P.2d 412 (statutory right to refuse conditioned on admission of evidence of refusal in criminal cases upheld under Fifth Amendment); State v. Hoenscheid, supra; State v. Brean, supra 136 Vt. at 151-152, 385 A.2d 1085 (State may condition statutory right of refusal, therefore admission of refusal evidence does not violate privilege against self-incrimination under Federal and State Constitutions). See also Coleman v. State, 658 P.2d 1364 (Alaska Ct.App.1983) (no constitutional right to refuse breathalyzer test, therefore refusal admissible under implied consent statute); State v. Vietor, supra (statute allowing admissibility of refusal upheld on Federal constitutional grounds; however, person has right to telephone attorney before deciding to submit to test); State v. Meints, supra (since statute provided that person gave consent to taking test, refusal to submit to test admissible in evidence).

The confused state of affairs on this issue is perhaps best illustrated by the decisions of the Supreme Court of Minnesota. See State v. Willis, 332 N.W.2d 180 (Minn.1983); State v. Schlinger, 299 Minn. 212, 216 N.W.2d 835 (1974) (per curiam); and State v. Andrews, 297 Minn. 260, 212 N.W.2d 863 (1973). Andrews determined that the admission of refusal evidence violated both Federal and State constitutional rights and also concluded that refusal evidence was inadmissible because of the statutory scheme involved. Schlinger declined to overrule Andrews, and determined it was reversible error for the trial judge to admit evidence that the defendant had refused to submit to chemical testing. Willis determined that evidence of the absence of the test is admissible as not violating the self-incrimination guarantees of the Federal Constitution; however, Willis did not expressly overrule Andrews or Schlinger. Nor did the court decide whether the admission of such evidence violated any State constitutional provision.

In spite of this disparity of treatment and result, ⁴ common to the analysis in all of these decisions is the understanding that the result turns on whether the evidence is testimonial or real (physical), and whether the evidence can be said to have been compelled in a constitutional sense.

Our Constitution adds an additional element not found in most other jurisdictions. Article 12 of the Declaration of Rights of the Massachusetts Constitution provides in part that no person shall "be compelled to accuse, or furnish evidence against himself." ⁵ We must examine, in addition, therefore, whether...