South Dakota v. Neville, No. 81-1453

CourtUnited States Supreme Court
Writing for the CourtO'CONNOR
Citation459 U.S. 553,74 L.Ed.2d 748,103 S.Ct. 916
Decision Date22 February 1983
Docket NumberNo. 81-1453
PartiesSOUTH DAKOTA, Petitioner v. Mason Henry NEVILLE

459 U.S. 553
103 S.Ct. 916
74 L.Ed.2d 748
SOUTH DAKOTA, Petitioner

v.

Mason Henry NEVILLE

No. 81-1453.
Argued Dec. 8, 1982.
Decided Feb. 22, 1983.
Syllabus

A South Dakota statute permits a person suspected of driving while intoxicated to refuse to submit to a blood-alcohol test, but authorizes revocation of the driver's license of a person so refusing the test and permits such refusal to be used against him at trial. When respondent was arrested by police officers in South Dakota for driving while intoxicated, the officers asked him to submit to a blood-alcohol test and warned him that he could lose his license if he refused but did not warn him that the refusal could be used against him at trial. Respondent refused to take the test. The South Dakota trial court granted respondent's motion to suppress all evidence of his refusal to take the blood-alcohol test. The South Dakota Supreme Court affirmed on the ground that the statute allowing introduction of evidence of the refusal violated the privilege against self-incrimination.

Held:

1. The admission into evidence of a defendant's refusal to submit to a blood-alcohol test does not offend his Fifth Amendment right against self-incrimination. A refusal to take such a 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. The offer of taking the test is clearly legitimate and becomes no less legitimate when the State offers a second option of refusing the test, with the attendant penalties for making that choice. Pp. 558-564.

2. It would not be fundamentally unfair in violation of due process to use respondent's refusal to take the blood-alcohol test as evidence of guilt, even though the police failed to warn him that the refusal could be used against him at trial. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91, distinguished. Such failure to warn was not the sort of implicit promise to forego use of evidence that would unfairly "trick" respondent if the evidence were later offered against him at trial. Pp. 564-566.

312 N.W.2d 723 (S.D.1981) reversed and remanded.

Page 554

Mark V. Meierhenry, Atty. Gen., for petitioner.

David R. Gienapp, Madison, S.D., for respondent.

Justice O'CONNOR delivered the opinion of the Court.

Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), held that a State could force a defendant to submit to a blood-alcohol test without violating the defendant's Fifth Amendment right against self-incrimination. We now address a question left open in Schmerber, id., at 765, n. 9, 86 S.Ct., at 1833, n. 9, and hold that the admission into evidence of a defendant's refusal to submit to such a test likewise does not offend the right against self-incrimination.

I

Two Madison, South Dakota police officers stopped respondent's car after they saw him fail to stop at a stop sign. The officers asked respondent for his driver's license and asked him to get out of the car. As he left the car, respondent staggered and fell against the car to support himself.

Page 555

The officers smelled alcohol on his breath. Respondent did not have a driver's license, and informed the officers that it was revoked after a previous driving-while-intoxicated conviction. The officers asked respondent to touch his finger to his nose and to walk a straight line. When respondent failed these field sobriety tests, he was placed under arrest and read his Miranda rights.1 Respondent acknowledged that he understood his rights and agreed to talk without a lawyer present. App. 11. Reading from a printed card, the officers then asked respondent to submit to a blood-alcohol test and warned him that he could lose his license if he refused.2 Respondent refused to take the test, stating "I'm too drunk, I won't pass the test." The officers again read the request to

Page 556

submit to a test, and then took respondent to the police station, where they read the request to submit a third time. Respondent continued to refuse to take the test, again saying he was too drunk to pass it.3

South Dakota law specifically declares that refusal to submit to a blood-alcohol test "may be admissible into evidence at the trial." S.D.Comp.Laws Ann. § 32-23-10.1.4 Nevertheless, respondent sought to suppress all evidence of his refusal to take the blood-alcohol test. The circuit court granted the suppression motion for three reasons: the South Dakota statute allowing evidence of refusal violated respondent's federal constitutional rights; the officers failed to advise respondent that the refusal could be used against him at trial; and the refusal was irrelevant to the issues before the court. The State appealed from the entire order. The South Dakota Supreme Court, 312 N.W.2d 723 (S.D.1981) affirmed the suppression of the act of refusal on the grounds that § 32-23-10.1, which allows the introduction of this evidence, violated the federal and state privilege against self-incrimination.5 The court reasoned that

Page 557

the refusal was a communicative act involving respondent's testimonial capacities and that the State compelled this communication by forcing respondent " 'to choose between submitting to a perhaps unpleasant examination and producing

Page 558

testimonial evidence against himself,' " 312 N.W.2d, at 726 (quoting State v. Andrews, 297 Minn. 260, 262, 212 N.W.2d 863, 864 (1973), cert. denied, 419 U.S. 881, 95 S.Ct. 146, 42 L.Ed.2d 121 (1974)).6

Since other jurisdictions have found no Fifth Amendment violation from the admission of evidence of refusal to submit to blood-alcohol tests,7 we granted certiorari to resolve the conflict. 456 U.S. 971, 102 S.Ct. 2232, 72 L.Ed.2d 844 (1982).

II

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, 77 S.Ct. 408, 412, 1 L.Ed. 2d 448 (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, 91 S.Ct. 668, 672, 28 L.Ed.2d 130 (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, 91 S.Ct. 1704, 1715 and 1722, 29 L.Ed.2d 233 (1971) (BLACKMUN, J., concurring) ("The slaughter on the highways of this Nation exceeds the death toll of all our

Page 559

wars"); Mackey v. Montrym, 443 U.S. 1, 17-18, 99 S.Ct. 2612, 2620-2621, 61 L.Ed.2d 321 (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, 86 S.Ct. 1826, 16 L.Ed.2d 908 (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.8 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, then, clearly allows a State to force a person suspected of driving while intoxicated to submit to a blood alcohol test.9 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

Page 560

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, 99 S.Ct. 2612, 61 L.Ed.2d 321 (1979).

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, 86 S.Ct., at 1833, n. 9. The Court did indicate that general Fifth Amendment principles, rather than the particular holding of Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), should control the inquiry. Ibid.10

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 ...

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1058 practice notes
  • U.S. v. Sweets, No. 06-4008.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • July 3, 2007
    ...v. Muniz, 496 U.S. 582, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990) (responding to a field sobriety test); South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983) (taking a Breathalyzer test); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) (providi......
  • State v. Valenzuela, No. CR–15–0222–PR.
    • United States
    • Supreme Court of Arizona
    • April 26, 2016
    ...“will not be an easy or pleasant one for a suspect to make,” this difficulty does not make the decision coerced. South Dakota v. Neville, 459 U.S. 553, 564, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983) (considering Fifth Amendment challenge to admission in evidence of refusal given in response to i......
  • Missouri v. McNeely, No. 11–1425.
    • United States
    • U.S. Supreme Court
    • April 17, 2013
    ...test to be used as evidence against him in a subsequent criminal prosecution. See NHTSA Review 173–175; see also South Dakota v. Neville, 459 U.S. 553, 554, 563–564, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983) (holding that the use of such an adverse inference does not violate the Fifth Amendment ......
  • State ex rel. Appleby v. Recht, No. 30737.
    • United States
    • Supreme Court of West Virginia
    • December 4, 2002
    ...Fourth Amendment § 10.8(d), p. 71 (2d ed.1987). For decades, this Court has "repeatedly lamented the tragedy." South Dakota v. Neville, 459 U.S. 553, 558, 103 S.Ct. 916, 920, 74 L.Ed.2d 748 (1983); see Breithaupt v. Abram, 352 U.S. 432, 439, 77 S.Ct. 408, 412, 1 L.Ed.2d 448 (1957) ("The inc......
  • Request a trial to view additional results
1058 cases
  • U.S. v. Sweets, No. 06-4008.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • July 3, 2007
    ...v. Muniz, 496 U.S. 582, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990) (responding to a field sobriety test); South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983) (taking a Breathalyzer test); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) (providi......
  • State v. Valenzuela, No. CR–15–0222–PR.
    • United States
    • Supreme Court of Arizona
    • April 26, 2016
    ...“will not be an easy or pleasant one for a suspect to make,” this difficulty does not make the decision coerced. South Dakota v. Neville, 459 U.S. 553, 564, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983) (considering Fifth Amendment challenge to admission in evidence of refusal given in response to i......
  • Missouri v. McNeely, No. 11–1425.
    • United States
    • U.S. Supreme Court
    • April 17, 2013
    ...test to be used as evidence against him in a subsequent criminal prosecution. See NHTSA Review 173–175; see also South Dakota v. Neville, 459 U.S. 553, 554, 563–564, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983) (holding that the use of such an adverse inference does not violate the Fifth Amendment ......
  • State ex rel. Appleby v. Recht, No. 30737.
    • United States
    • Supreme Court of West Virginia
    • December 4, 2002
    ...Fourth Amendment § 10.8(d), p. 71 (2d ed.1987). For decades, this Court has "repeatedly lamented the tragedy." South Dakota v. Neville, 459 U.S. 553, 558, 103 S.Ct. 916, 920, 74 L.Ed.2d 748 (1983); see Breithaupt v. Abram, 352 U.S. 432, 439, 77 S.Ct. 408, 412, 1 L.Ed.2d 448 (1957) ("The inc......
  • Request a trial to view additional results

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