State v. Beaton, Cr. N

• Decision Date: 19 May 1994
• Docket Number: Cr. N
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Daniel Lucian BEATON, Defendant and Appellant. o. 930322.
• Court: North Dakota Supreme Court

Page 645

516 N.W.2d 645

STATE of North Dakota, Plaintiff and Appellee, v. Daniel Lucian BEATON, Defendant and Appellant.

Cr. No. 930322.

Supreme Court of North Dakota.

May 19, 1994.

Mark Rainer Boening, Asst. State's Atty., Fargo, for plaintiff and appellee.

Robin L. Olson, Nelson Law Office, Fargo, for defendant and appellant.

VANDE WALLE, Chief Justice.

Daniel Lucian Beaton appealed from a judgment of conviction entered upon a jury verdict finding him guilty of being in actual physical control of a motor vehicle while under the influence of intoxicating liquor. ¹ We conclude that Beaton's statements refusing to submit to a chemical test to determine his blood alcohol content should not have been admitted into evidence. We reverse the judgment and remand for a new trial.

On April 20, 1993, Trooper Ronald Duane Stanley, North Dakota Highway Patrol, was dispatched to a location on Cass County Road 26, near Gardner, North Dakota. When Stanley arrived at the location, he observed a vehicle parked "two-thirds of the way onto the roadway just before a bridge that goes into Minnesota." There was a beer can outside the driver's door. Stanley "walked up to the vehicle, removed the key from the ignition, picked up the can, took those back" to his car and awakened Beaton, who was sleeping in the driver's seat. When he awakened Beaton, Stanley could smell the odor of alcohol on Beaton's breath and observed that Beaton's "eyes were red, watery, and bloodshot."

Stanley had Beaton perform field sobriety tests and arrested him for actual physical control. Beaton was handcuffed and placed in the back seat of the patrol car. Another officer drove Beaton's car to Beaton's home in Perley, Minnesota. Stanley read to Beaton an implied consent advisory. ² Stanley did not advise Beaton that a refusal to take a chemical test to determine his blood alcohol level would be used against him at trial and did not give Beaton a Miranda ³ warning. Beaton refused to submit to a test.

Beaton moved to suppress his statements refusing to take a chemical test and to dismiss the case. The trial court denied the motion. A jury trial resulted in a conviction. Beaton appealed, contending that his seizure was illegal, that the use at trial of his words refusing a chemical test violated his privilege against self-incrimination under Art. I, Sec. 12, N.D. Const., that his refusal to submit to a chemical test should have been excluded under Rule 403, N.D.R.Ev., and that Stanley had no "jurisdiction to request the chemical test."

An officer has reasonable grounds or probable cause to arrest if the facts and circumstances within the officer's knowledge " 'are sufficient to warrant a man of reasonable caution in believing that an offense has been or is being committed.' " Moser v. North Dakota State Highway Comm'r, 369 N.W.2d 650, 652-53 (N.D.1985), quoting Witte v. Hjelle, 234 N.W.2d 16, 18 Syllabus p 3 (N.D.1975). Here, the facts and circumstances encountered in Stanley's investigative and caretaking encounter with Beaton led to further knowledge, which ultimately provided Stanley with probable cause to arrest Beaton for actual physical control. See, e.g., State v. Langseth, 492 N.W.2d 298 (N.D.1992); Wolf v. North Dakota Highway Comm'r, 458 N.W.2d 327 (N.D.1990); Wibben v. North Dakota State Highway Comm'r, 413 N.W.2d 329 (N.D.1987).

Section 39-20-08, N.D.C.C., provides that refusal to submit to a test is admissible in actions or proceedings: ⁴

"If the person under arrest refuses to submit to the test or tests, proof of refusal is admissible in any civil or criminal action or proceeding arising out of acts alleged to have been committed while the person was driving or in actual physical control of a vehicle upon the public highways while under the influence of intoxicating liquor, drugs, or a combination thereof." (Emphasis added.)

The Fifth Amendment to the United States Constitution provides an accused with a privilege against self-incrimination: "No person ... shall be compelled, in any criminal case, to be a witness against himself." Article I, Sec. 12, N.D. Const., also provides a privilege against self-incrimination: "No person shall ... be compelled in any criminal case to be a witness against himself."

Beaton unsuccessfully sought to have his statements of refusal to submit to a blood test suppressed. At the hearing on Beaton's motion to suppress, Stanley testified about Beaton's refusal:

"Q. Did you ask him to submit to a blood drawing at that point?

"A. Several times through the trip I had asked him to submit to a blood sample.

"Q. Did you actually go to the hospital?

"A. Yes, I did.

"Q. When you were at the hospital did you ask him again?

"A. Yes, I did.

"Q. And how did he respond?

"A. I'd asked him if he would consent to a blood test and he said, 'No.' And I told him that that would be going down as a refusal and he said that he understood that. He also said that I had been very fair. And I said, 'Okay, then we'll go from here to Cass County.' "

At Beaton's jury trial, Stanley testified about Beaton's refusal:

"Q. Did Mr. Beaton agree to take a test?

"A. No, he said he didn't want to take it. I said we have got thirty minutes to get back into Fargo. He can think on it on his way in and we can make another decision once we get back to Fargo.

"Q. Did you then go back to Fargo?

"A. Yes, we did.

"Q. Did you ask him again on your way back to Fargo whether or not he would submit to a chemical test?

"A. I asked him en route to Fargo when we were probably still 25 miles out and again when we were at the hospital at the ER room when he was still in my car.

"Q. What was his response?

"A. The third time I asked him I said, 'would you consider taking the test?' And he said, 'No.' And I said, 'Well, it will go down as a refusal.' And he said, 'Well you've been very fair. I do not want to take the test.' And I said, 'Okay. It will go down as a refusal then.' "

Beaton contends that, by using his statements of refusal as evidence against him, the prosecution deprived him of the privilege against self-incrimination afforded him by Art. I, Sec. 12, N.D. Const. In In re Beer, 17 N.D. 184, 187, 115 N.W. 672, 673 (1908), this court said of Art. I, Sec. 13, Const. 1889 (now Art. I, Sec. 12, N.D. Const.):

"The privilege guaranteed by this constitutional provision relates to the personal liberty of the citizen, and it is now a generally accepted principle that such constitutional provisions should be liberally construed and given full force, or the intent thereof will be unavailing."

To secure the privilege against self-incrimination afforded by Art. I, Sec. 12, N.D. Const., we conclude that in criminal prosecutions for driving or being in actual physical control of a motor vehicle while under the influence of intoxicating liquor in violation of Sec. 39-08-01, N.D.C.C., if the defendant was not given the Miranda warnings, Sec. 39-20-08, N.D.C.C., must be literally and narrowly construed to make only the fact of refusal, not the defendant's statements of refusal, admissible in evidence.

In Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694, 706-07 (1966), the United States Supreme Court held that a defendant's statements during custodial interrogation were inadmissible in criminal proceedings unless procedural safeguards had been employed to secure the privilege against self-incrimination afforded by the Fifth Amendment to the United States Constitution:

"[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed."

The court observed that, "[u]nless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice." Id., 384 U.S. at 458, 86 S.Ct. at 1619. The court recognized a fundamental tenet that punishment ought to rest on proof, rather than the power to compel: "[O]ur accusatory system of criminal justice demands that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from his own mouth." Id., at 460, 86 S.Ct. at 1620.

The reach of the privilege against self-incrimination was further explained in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), which was decided one week after Miranda. Armando Schmerber was arrested for driving while under the influence of intoxicating liquor. Despite Schmerber's refusal to consent to a test, a blood sample was drawn from his body at the direction of a police officer. The test result was admitted into evidence and Schmerber was convicted. The court 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, and ... the withdrawal of blood and use of the analysis in question in this case did not involve compulsion to these ends." Id., 384 U.S. at 761, 86 S.Ct. at 1830. As ...