State v. Jackson

• Decision Date: 14 December 1981
• Docket Number: No. 80-405,80-405
• Citation: 195 Mont. 185,637 P.2d 1
• Parties: The STATE of Montana, Plaintiff and Appellant, v. Robert Charles JACKSON, Defendant and Respondent.
• Court: Montana Supreme Court

Page 1

637 P.2d 1

195 Mont. 185

The STATE of Montana, Plaintiff and Appellant, v. Robert Charles JACKSON, Defendant and Respondent.

No. 80-405.

Supreme Court of Montana.

Submitted Feb. 19, 1981.

Decided Nov. 2, 1981.

Rehearing Denied Dec. 14, 1981.

Mike Greely, Atty. Gen., Helena, Dennis J. Dunphy argued, Asst. Atty. Gen., Helena, Donald White, County Atty., Bozeman, Michael J. Lilly argued, Deputy County Atty., Bozeman, for plaintiff and appellant.

Goetz & Madden, Bozeman, James H. Goetz argued, Bozeman, for defendant and respondent.

SHEA, Justice.

The State appeals from an order of the Gallatin County District Court which declared section 61-8-404, MCA unconstitutional and suppressed all evidence of the defendant's refusal to submit to a breathalyzer sobriety test after he was arrested for driving while under the influence of intoxicants. The primary question on appeal is whether the refusal is testimonial in nature so that the fact of refusal cannot be admitted into evidence. We hold that such refusal is testimonial in nature and that to admit evidence of the fact of refusal would violate the defendant's Fifth Amendment privilege as guaranteed by the United States Constitution, and would further violate defendant's privilege as guaranteed by Art. II, § 25 of the Montana Constitution.

A second question raised, but which we do not reach here because of our holding, is defendant's contention that admission of evidence of his refusal to take the breathalyzer test violates his right to due process because he was not told the consequences of his refusal. Without specifically setting forth the actual basis for its decision, the trial court granted the motion in limine, and thus suppressed all evidence of the defendant's refusal to take the breathalyzer test.

Shortly after the defendant's arrest on June 6, 1980, for driving while under the influence of alcohol, he was taken to the Bozeman police station and asked to submit to a breathalyzer test and to perform certain physical coordination exercises. He performed the coordination exercises, but refused to submit to the breathalyzer test. The police recorded all of his activities on videotape, including his refusal to take the breathalyzer test.

Before trial, the defendant filed a motion in limine to suppress all evidence of his refusal to submit to the breathalyzer test as well as any evidence of license suspension resulting from that refusal. Section 61-8-404(2), MCA, states that if one refuses to submit to a sobriety test, the fact of refusal can be admitted into evidence against him. However, section 61-8-402(3), MCA, permits a person to refuse a sobriety test. Defendant argued that admitting evidence of his refusal to take the sobriety test would violate his privilege against self-incrimination and his right to due process. The trial court agreed and granted the motion in limine.

Although the defendant concedes he has no federal constitutional right to refuse a sobriety test (see Schmerber v. California (1966), 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908), he contends that section 61-8-404(2), MCA, in one breath gives him a right to refuse the sobriety test, but in the next breath permits the fact of refusal to be admitted as evidence against him. This statutory right of refusal is testimonial or communicative in nature, he argues, and was compelled by the State. He further argues that evidence of his refusal violates his privilege against being compelled to testify against himself, and is equivalent to allowing prosecutorial comment on his right to remain silent.

The State argues, on the other hand, that the refusal is not testimonial or communicative in nature, and therefore it is not protected by the privilege against self-incrimination. The State cites a line of cases which holds that the refusal to take a sobriety test is conduct to be viewed as circumstantial evidence of guilt, in the same way that escape, flight, and false alibi are viewed. For example, see Commonwealth v. Robinson (1974), 229 Pa.Super. 131, 324 A.2d 441 (refusal is circumstantial evidence from which the jury can infer his state of mind); People v. Sudduth (1966), 65 Cal.2d 543, 55 Cal.Rptr. 393, 421 P.2d 401, cert. denied (1967), 389 U.S. 850, 88 S.Ct. 43, 19 L.Ed.2d 119 (where refusal might operate to suppress rapidly-disappearing evidence of intoxication, it should not be encouraged as a device to escape prosecution and does not qualify for Fifth Amendment protection); State v. Durrant (1963), 5 Storey 510, 55 Del. 510, 188 A.2d 526 (evidence of refusal reflects defendant's attitude toward the crime and is a matter of weight for the jury to decide). The fact is, however, that this line of cases fails to recognize that escape, flight, and false alibi are not compelled by the State. Under section 61-8-404(2), supra, the defendant is compelled to choose between providing physical evidence against himself by submitting to the sobriety test and providing testimonial evidence against himself by refusing to submit to the sobriety test. That is no choice at all.

The statute which recognizes the right to refuse the test, section 61-8-404, MCA, also provides for the admissibility of the fact of refusal:

"(1) Upon the trial of any criminal action or proceeding arising out of acts alleged to have been committed by any person while driving or in actual physical control of a motor vehicle while under the influence of intoxicating liquor, evidence of the amount of alcohol in the person's blood at the time of the act alleged as shown by a chemical analysis of his blood, breath, or urine is admissible.

"(2) If the person under arrest refused to submit to the test as hereinabove provided, proof of refusal shall be admissible in any 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 motor vehicle upon the public highways while under the influence of intoxicating liquor."

Many states have held that admitting evidence of a defendant's refusal to take a sobriety test violates the privilege against self-incrimination because the effect of admitting evidence of the defendant's refusal is equivalent to compelling the defendant to testify against himself. See, for example, State v. Adams (W.Va.1978), 247 S.E.2d 475; Dudley v. State (Tex.Cr.App.1977), 548 S.W.2d 706; People v. Rodriguez (1975), 80 Misc.2d 1060, 364 N.Y.S.2d 786; Application of Baggett (Okl.1974), 531 P.2d 1011; State v. Andrews (1973), 297 Minn. 260, 212 N.W.2d 863, cert. denied (1974), 419 U.S. 881, 95 S.Ct. 146, 42 L.Ed.2d 121; Johnson v. State (1972), 125 Ga.App. 607, 188 S.E.2d 416; Gay v. City of Orlando (Fla.App.1967), 202 So.2d 896, cert. denied (1968), 390 U.S. 956, 88 S.Ct. 1052, 19 L.Ed.2d 1149. We agree with these decisions that not only does admission of such evidence violate the defendant's privilege against self-incrimination, but also that the admission of such evidence is not always reliable and is highly prejudicial to the defendant, in effect forcing him to take the witness stand to explain why he refused to take the test, or to bear the consequences of not explaining.

Without question, the fact of refusal to take a sobriety test will be considered as circumstantial evidence of the defendant's belief that the test results would have been incriminating, and without question that is the argument any prosecutor would make to the jury. Effectively, the evidence of refusal has substantially the same effect in the prosecution's case as the evidence the prosecution sought to obtain through the resisted examination. Evidence of a defendant's refusal, whether expressed verbally or by physical resistance, is relevant in its testimonial aspect as the equivalent of the statement, "Because I fear that the test will produce evidence of my guilt, I refuse to take the test." 78 Yale L.J. 1074, 1082-1085 (1969). And the likelihood is strong that the jury will ascribe undue weight to the defendant's refusal.

We analogize this to a situation where the State offers a defendant a polygraph examination, but the defendant refuses it. Surely, the State would like to argue to the jury that it had offered the defendant a polygraph examination, but that he refused. And just as surely, we doubt that any court would not find this to be an improper invasion into the defendant's privilege against self-incrimination. In either situation, the inference left for the jury is that the defendant displayed consciousness of his guilt. Such evidence is inadmissible if it is compelled by the State.

In addition, a defendant may have valid reasons for refusing a breathalyzer test-reasons which do not reflect his consciousness of guilt. Yet, if the fact of his refusal is admitted into evidence, he will be compelled to either take the witness stand to explain his refusal or to take the chance that the jury will infer that he was in fact under the influence of alcohol. Several cases illustrate situations in which the defendant refused to submit to the test for reasons other than fear that the test would yield evidence of guilt: State ex rel. Baumert v. Municipal Court of Phoenix (1978), 119 Ariz. 142, 579 P.2d 1112 (failure to take test was due to defendant's asthma); State v. Adams (W.Va.1978), 247 S.E.2d 475 (defendant may fear the test itself or may distrust the procedure or the competency of the testers); State v. Paschal (1961), 253 N.C. 795, 117 S.E.2d 749 (defendant feared he would have to pay for the test); Engler v. State (Okl.Crim.1957), 316 P.2d 625 (bona fide doubts as to reliability of test); and Columbus v. Mullins (1954), 162 Ohio St. 419, 123 N.E.2d 422 (defendant desired presence of a doctor.) In each of these cases, it was held that admitting evidence of defendant's refusal to take the test violated his privilege against self-incrimination.

The likelihood of prejudice to a defendant increases if he had an innocent reason for refusing...