State v. Cormier

• Decision Date: 16 August 1985
• Docket Number: No. 84-509,84-509
• Citation: 127 N.H. 253,499 A.2d 986
• Parties: The STATE of New Hampshire v. Maureen CORMIER.
• Court: New Hampshire Supreme Court

Page 986

499 A.2d 986

127 N.H. 253

The STATE of New Hampshire v. Maureen CORMIER.

No. 84-509.

Supreme Court of New Hampshire.

Aug. 16, 1985.

Stephen E. Merrill, Atty. Gen., Concord (Tina Schneider, Concord, on brief, and Steven L. Winer, Nashua, orally), for the State.

Murphy, McLaughlin & Hemeon P.A., Laconia (Matthew J. Lahey on brief and orally), for defendant.

SOUTER, Justice.

The defendant was convicted of the misdemeanor of operating a motor vehicle while under the influence of intoxicating liquor. RSA 265:82 (Supp.1983) and : 82-b, I(b) (Supp.1983). At trial she invoked the privilege against compelled self-incrimination in objecting to the introduction of evidence that she had refused to submit to a chemical test for blood alcohol content. The Superior Court (Cann, J.) overruled the objection. We affirm.

Following the defendant's arrest for operating a motor vehicle while under the influence of intoxicating liquor (DWI), the police requested that she provide a sample of breath or bodily fluid to test in order to determine the amount of alcohol in her blood. RSA 265:84 (Supp.1983) (the implied consent law). When the defendant refused to provide a sample the police took none, see RSA 265:89, but at her subsequent jury trial, the State sought over her objection to introduce evidence of her refusal, as permitted by RSA 265:88-a (Supp.1983):

"If a person refuses to submit to a test as provided in RSA 265:84 [Supp.1983], such refusal may be admissible into evidence in a civil or criminal action or proceeding arising out of an act alleged to have been committed by that person while driving or attempting to drive a motor vehicle while under the influence of intoxicating liquor or any controlled drug."

The defendant did not deny that her refusal was probative of guilt, but based her objection on the ground that the introduction of the evidence of refusal would violate her privilege against compelled self-incrimination.

After the trial court had overruled the objection, the following question and answer ensued:

"Q. Did she agree to take the test that evening?

A. No, she refused to."

The jury returned a verdict of guilty, and the defendant appealed on the ground that the court committed constitutional error in admitting the testimony in question.

The defendant presses no claim under the fifth and fourteenth amendments of the Constitution of the United States, since the Supreme Court rejected such a contention in South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983). Instead, she rests her argument on the State counterpart of the fifth amendment, contained in the language of part I, article 15 of the Constitution of New Hampshire, that no one shall "be compelled to accuse or furnish evidence against himself."

An objection resting on this language from article 15 may raise two basic questions: does the evidence in question fall within the scope of evidence to which the article applies, and did the action of the State in obtaining that evidence constitute compulsion? Taking up the first question, it is settled law that article 15 applies only to evidence provided by a defendant that is of testimonial character.

"Historically [the privilege against compelled self-incrimination] originated as a reaction to the practice in the early English courts of compelling a witness to be sworn and give testimony concerning his guilt. 8 J. Wigmore, Evidence 2250 (McNaughton rev. 1961, Supp.1972); C. McCormick et al., Evidence §§ 114-17 (2d ed.1972). 'In the light of this history the textwriters and the overwhelming majority of the courts have limited the scope of the privilege to ... "testimonial compulsion," i.e., "compulsion to do those things which a witness would by traditional judicial processes be required to do," 'State v. King, 44 N.J. 346, 357, 209 A.2d 110, 116 (1965)."

State v. Arsenault, 115 N.H. 109, 112, 336 A.2d 244, 246 (1975); see also State v. Sturtevant, 96 N.H. 99, 103, 70 A.2d 909, 911-12 (1950). Article 15, like similar guarantees in other states, is thus comparable in scope to the fifth amendment. State v. Arsenault, supra, 115 N.H. at 112, 336 A.2d at 246; see South Dakota v. Neville supra; Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).

Since such provisions apply only to testimonial evidence, "both federal and state courts have usually held that [the privilege against compelled self-incrimination] offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture." Schmerber v. California, supra at 764, 86 S.Ct. at 1832 (footnote omitted). With particular relevance to the latter part of this opinion, it is clear that the bar against compelled evidence does not extend to physical evidence such as a sample of a defendant's blood, see State v. Sturtevant supra, or to demonstrations provided by the performance of field sobriety tests, see State v. Arsenault supra.

While such examples of testimonial and non-testimonial evidence are easy to give, there are some instances of evidentiary behavior that do not fit neatly on one side of the line or the other. See South Dakota v. Neville, 459 U.S. at 561-62, 103 S.Ct. at 921-22. In the present case, as in Neville, the defendant's refusal was communicative in the sense that it was the communication of a decision, but it was not testimonial in the sense that it was an act "which by traditional judicial process [a witness would] be required to do." State v. Arsenault, 115 N.H. at 112, 209 A.2d at 116. The dissenting justices in this case choose to emphasize the communicative function of the defendant's statement in concluding that it is evidence to which article 15 applies.

As the discussion in the latter part of this opinion will indicate, however, there are good reasons for holding that the refusal should be viewed as an act of choice to suppress physical evidence and, therefore, as non-testimonial for purposes of applying the provisions of article 15. See, e.g., People v. Ellis, 65 Cal.2d 529, 421 P.2d 393, 55 Cal.Rptr. 385 (1966) (refusal to provide voice sample is non-testimonial); People v. Sudduth, 65 Cal.2d 543, 421 P.2d 401, 55 Cal.Rptr. 393 (1966) (refusal to furnish breath sample for breathalyzer constitutionally admissible), cert. denied, 389 U.S. 850, 88 S.Ct. 43, 19 L.Ed.2d 119, reh'g denied, 389 U.S. 996, 88 S.Ct. 460, 19 L.Ed.2d 506 (1967). This is in fact the majority view. See South Dakota v. Neville, supra, 459 U.S. at 560-61, 103 S.Ct. at 921 and cases collected at n. 11.

Nevertheless, we do not believe that the case should turn on the resolution of this issue. For whether the refusal be regarded as testimonial or not, we believe that it cannot reasonably be classified as compelled.

The defendant's argument that her refusal was compelled begins with the assertion that the State imposed upon her the obligation to choose between submitting to a test by providing a sample or refusing to do so. Since both alternatives were bad from her standpoint, she argues that her choice was not free but compelled.

In addressing this argument, the first question must be whether to accept its terms. For if one initially accepts the premise that the State has "imposed" on the defendant a choice or option of submitting or refusing to submit, then it is easy to characterize the act of choice as involuntary. But to accept that premise is to miss the very issue in this case. That issue is whether it is reasonable to say that the State has "imposed" a requirement to choose, such that the choice of refusing to provide a sample should be considered to be "compelled." For the reasons that follow, we conclude that the requirement to choose should not be regarded as "imposed" and that a refusal should not be regarded as "compelled."

To determine whether the requirement to choose can reasonably be said to be imposed it is necessary to be clear about the subject of the choice and the source of the defendant's power to make the choice in a way that will be effectual for legal purposes. As we have noted before, the choice is one to provide or to refuse to provide a sample of bodily substance, such as blood, urine or breath, that can be tested chemically to determine blood alcohol content. It is important to recognize that neither the State nor the National Constitution provides or guarantees that a defendant will have this choice.

It is settled law that a healthy driver arrested for DWI has no constitutional right to refuse to provide a sample for a blood alcohol test. The privilege against self-incrimination does not require the State to obtain the defendant's permission. See State v. Sturtevant, 96 N.H. 99, 70 A.2d 909; Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Neither does the guarantee of due process. Schmerber v. California supra. Due process rather forbids the use of brutal or unreasonable means to require the test or to obtain the sample. See Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952); South Dakota v. Neville, 459 U.S. at 559, n. 9, 103 S.Ct. at 921, n. 9; Schmerber v. California, supra, 384 U.S. at 760, n. 4, 86 S.Ct. at 1830, n. 4. This case is therefore essentially different from Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, reh'g denied, 381 U.S. 957, 85 S.Ct. 1797, 14 L.Ed.2d 730 (1965), which held that a court could not penalize the exercise of a defendant's fifth amendment privilege. In the present case the defendant's refusal is not the exercise of any constitutional right or privilege whatsoever.

The defendant's refusal is, rather, the exercise of a legal right provided by the legislature. The legislature has chosen not to insist that the State exercise its constitutional power to demand a sample for testing in every case. It has chosen instead...