State v. Jackson, 80-405

• Citation: 40 St.Rep. 1698,206 Mont. 338,672 P.2d 255
• Decision Date: 21 October 1983
• Docket Number: No. 80-405,80-405
• Parties: The STATE of Montana, Plaintiff and Appellant, v. Robert Charles JACKSON, Defendant and Respondent.
• Court: United States State Supreme Court of Montana

Page 255

672 P.2d 255

206 Mont. 338

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

No. 80-405.

Supreme Court of Montana.

Submitted May 31, 1983.

Decided Oct. 21, 1983.

Mike Greely, Atty. Gen., argued, Helena, Sarah Power, Asst. Atty. Gen., argued, Helana, A. Michael Salvagni, County Atty., Bozeman, for plaintiff and appellant.

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

Mark Connell, Baldassin, Connell & Beers, Missoula, for amicus curiae (American Civil Liberties Union).

HASWELL, Chief Justice.

This case comes to us for the second time following remand by the United States Supreme Court, --- U.S. ----, 103 S.Ct. 1418, 75 L.Ed.2d 782.

This case began when defendant, Robert Charles Jackson, was charged with driving a motor vehicle while under the influence of alcohol, fourth offense, a misdemeanor, in the District Court of Gallatin County. During the course of prosecution, the District Court entered an order suppressing all evidence of Jackson's refusal to submit to a breathalyzer sobriety test. On appeal, this Court affirmed the District Court in a 4-3 decision.

On application by the State, the United States Supreme Court granted certiorari, reviewed our decision, and entered the following order which we quote in pertinent part "The petition for writ of certiorari is granted. The judgment is vacated and the case is remanded to the Supreme Court of Montana to consider whether its judgment is based upon federal or state constitutional grounds, or both, and, if its judgment is not based upon state constitutional grounds, for further consideration in light of South Dakota v. Neville, 459 U.S. [----, 103 S.Ct. 916, 74 L.Ed.2d 748], (1983)."

The factual background of this case commenced on June 6, 1980, when Jackson was arrested by Bozeman police for driving under the influence of alcohol. At the police station, he was asked to submit to a breathalyzer test. He refused. This was recorded on videotape together with his performance of certain coordination tests.

Jackson was charged with driving a motor vehicle under the influence of alcohol, fourth offense, in violation of section 61-8-401, MCA. He filed a motion in limine seeking suppression of all evidence of any license suspension resulting from that refusal. The District Court granted suppression, apparently holding that part of Montana's implied consent statute permitting the admission of such evidence unconstitutional.

On appeal, this Court in a split decision affirmed the District Court on the basis that such refusal was testimonial in nature and coerced; hence, admission of such evidence would violate Jackson's right against self-incrimination guaranteed by the Fifth Amendment to the United States Constitution and Article II, Section 25, of the Montana Constitution. State v. Jackson (1981), 195 Mont. 185, 637 P.2d 1.

The Montana Attorney General filed a petition for writ of certiorari seeking a review of our decision by the United States Supreme Court. Thereafter, the United States Supreme Court issued an opinion in a South Dakota case holding that the Fifth Amendment protection against self-incrimination did not prohibit admission in evidence of a person's refusal to take a blood-alcohol sobriety test in a DUI prosecution under South Dakota's implied consent statute. South Dakota v. Neville (1983), 459 U.S. ----, 103 S.Ct. 916, 74 L.Ed.2d 748. Finally, the United States Supreme Court vacated our judgment in the instant case and remanded it to us for further consideration as heretofore set forth.

On remand, we ordered supplemental briefing and heard oral argument on May 31, 1983.

Two issues are presented for our consideration:

1. Was our Jackson decision based on federal or state constitutional grounds, or both?

2. If our Jackson decision was not based on state constitutional grounds, was it overruled by South Dakota v. Neville?

The State contends that there are no adequate and independent state constitutional grounds supporting this Court's Jackson decision. The State argues that our Jackson opinion rests on an analysis of federal cases construing the Fifth Amendment protection against self-incrimination and no reasons are given in the Jackson opinion for construing Montana's constitutional prohibitions against self-incrimination any differently. The State points to prior decisions of this Court holding that Montana's constitutional provision against self-incrimination affords no broader protection to the accused than does the Fifth Amendment in the United States Constitution.

Jackson contends that this Court in Jackson expressly held that its decision was based on state constitutional grounds as well as federal constitutional grounds. He argues that this Court in Jackson gave reasons for according greater breadth to Montana's constitutional prohibition against self-incrimination than that in the federal constitution by its analysis of cases from other states. Jackson buttresses his argument by pointing out references in Jackson to state constitutional considerations.

The United States Supreme Court has addressed this question on numerous prior occasions to determine its authority to review a state court decision. It is well settled that the United States Supreme Court is the ultimate authority in interpreting provisions of the United States Constitution just as the state supreme court is the ultimate authority in interpreting the provisions of its state constitution. A problem arises when it is unclear whether a state decision is based on the United States Constitution or the state constitution, or both. Essentially, the United States Supreme Court has ruled that unless the state court opinion is based on adequate and independent state grounds, the United States Supreme Court has jurisdiction to review it. Michigan v. Long (1983), --- U.S. ----, 103 S.Ct. 3469, 77 L.Ed.2d 1201; South Dakota v. Neville, supra; Delaware v. Prouse (1979), 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660; Zacchini v. Scripps-Howard Broadcasting Co. (1977), 433 U.S. 562, 97 S.Ct. 2849, 53 L.Ed.2d 965.

Within this basic framework, the United States Supreme Court has developed more specific guidelines. Where the state supreme court "held as it did because it felt under compulsion of federal law as enunciated by this Court so to hold, it should be relieved of that compulsion. It should be free to decide ... these suits according to its own local law." Missouri ex rel. Southern R. Co. v. Mayfield (1950), 340 U.S. 1, 5, 71 S.Ct. 1, 3, 95 L.Ed. 3, cited with approval in Zacchini v. Scripps-Howard Broadcasting Co., supra. If the state court "felt compelled by what it understood to be federal constitutional considerations to construe ... its own law in the manner it did," then the United States Supreme Court will not treat a normally adequate state ground as independent and its jurisdiction is clear. Delaware v. Prouse, 440 U.S. at 653, 99 S.Ct. at 1395. The essence of the principle applicable to resolution of the issue has recently (July 6, 1983) been summarized in this manner:

"... Accordingly, when, as in this case, a state court decision fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion, we will accept as the most reasonable explanation that the state court decided the case the way it did because it believed that federal law required it to do so. If a state court chooses merely to rely on federal precedents as it would on the precedents of all other jurisdictions, then it need only make clear by a plain statement in its judgment or opinion that the federal cases are being used only for the purpose of guidance, and do not themselves compel the result that the court has reached ..." Michigan v. Long, --- U.S. at ----, 103 S.Ct. at 3476, 77 L.Ed.2d at 1214.

Our original Jackson decision contained statements that to admit evidence of refusal to submit to a breathalyzer sobriety test would violate the Fifth Amendment privilege against self-incrimination and Montana's privilege against self-incrimination guaranteed by Article II, Section 25 of the Montana Constitution. The opinion indicates that the basis of that ruling was that such refusal is testimonial in nature and coerced, thus falling within the ambit of protection against self-incrimination.

As we read the Jackson opinion, that conclusion is reached primarily by an analysis of federal cases interpreting the Fifth Amendment protection against self-incrimination. Schmerber v. California (1966), 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908, is distinguished on the basis that a blood sample is real, physical evidence of a nontestimonial nature beyond Fifth Amendment protection. Doyle v. Ohio (1976), 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91, was cited for the proposition that a person's refusal to take a sobriety test is an overt communication of that person's thoughts, compelled by the police, from which it was reasoned that it was protected against self-incrimination by the Fifth Amendment; a statement follows that under our constitution, the privilege against self-incrimination of an accused person's thoughts, whether by acts or words spoken, and the fact it does not extend its protection to forbid the compulsory exhibition of physical characteristics does not nullify the protection it does provide; Hoffman v. United States (1951), 341 U.S 479, 71 S.Ct. 814, 95 L.Ed. 1118, and Murphy v. Waterfront Comm'n (1964), 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678, were cited as support for a liberal construction of the Fifth Amendment in favor of the accused followed by a statement that we must also liberally construe Article II, Section 25, of the Montana Constitution.

A number of state decisions are cited as examples of state rulings that the admission of evidence of a...