State v. Neville

Decision Date26 May 1983
Docket NumberNo. 13260,13260
Citation346 N.W.2d 425
PartiesSTATE of South Dakota, Plaintiff and Appellant, v. Mason Henry NEVILLE, Defendant and Appellee. . Considered on Briefs
CourtSouth Dakota Supreme Court

Mark Smith, Asst. Atty. Gen., Pierre, for plaintiff and appellant; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

David R. Gienapp of Arneson, Issenhuth & Gienap, Madison, for defendant and appellee.

MORGAN, Justice (on rehearing).

This case is before this court on remand from the United States Supreme Court. South Dakota v. Neville, 459 U.S. ----, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983). State appealed a state circuit court order suppressing evidence of appellant Mason Henry Neville's (Neville) refusal to submit to a blood-alcohol test and we affirmed. State v. Neville, 312 N.W.2d 723 (S.D.1981). The Supreme Court granted certiorari and reversed and remanded. We affirm in part, reverse in part, and remand our decision in State v. Neville, supra.

On July 19, 1980, two Madison, South Dakota, police officers observed Neville's failure to stop for a stop sign. The police officers stopped Neville and, after he failed at least two field sobriety tests, arrested him for driving while intoxicated. After advising Neville of his Miranda rights, the arresting officer asked him to submit to a blood-alcohol test. Neville refused to submit to the test, stating "I'm too drunk, I won't pass the test." Neville subsequently moved to suppress any and all evidence of his refusal and the circuit court ordered the evidence of his refusal suppressed. We affirmed, holding that SDCL 32-23-10.1 1 violated both the federal and state constitutions. The Supreme Court held that this statute does not violate the federal constitution and reversed and remanded for proceedings not inconsistent with its opinion. We now review this case on remand. 2

In examining South Dakota v. Neville, supra, we will focus upon three issues: (1) Whether a refusal to take a blood test is physical or testimonial evidence and, if the former, not protected by the privilege against self-incrimination; (2) whether physical or moral coercion which is impermissible under the protection against self-incrimination was involved; and (3) whether the warning given to Neville met due process requirements.

Initially, we address the issue of jurisdiction raised by the Supreme Court. It is well established that the Supreme Court will not take jurisdiction of a state court judgment that rests on an adequate and independent state ground. Herb v. Pitcairn, 324 U.S. 117, 65 S.Ct. 459, 89 L.Ed. 789 (1945). In its review of Neville, the Court found that although there was an adequate state ground for our decision, it did not "read the opinion as resting on an independent state ground." 459 U.S. at ---- n. 5, 103 S.Ct. at 919 n. 5, 74 L.Ed.2d at 754 n. 5 (emphasis in original).

As we stated in State v. Opperman, 247 N.W.2d 673 (S.D.1976), "[w]e have always assumed the independent nature of our state constitution regardless of any similarity between the language of that document and the federal constitution." Id. at 674. Accord, People v. Pettingill, 145 Cal.Rptr. 861, 21 Cal.3d 231, 578 P.2d 108 (1978); People v. Williams, 93 Misc.2d 93, 402 N.Y.S.2d 289 (1978); Miller v. State, 584 S.W.2d 758 (Tenn.1979). Although federal cases may be persuasive, they are not controlling. See, e.g., Redmond v. Ray, 268 N.W.2d 849 (Iowa 1978); Spector v. State, 289 Md. 407, 425 A.2d 197 (1981); Clark v. Uniroyal Corp., 119 Mich.App. 820, 327 N.W.2d 372 (1982); Neal v. School Dist. of York, 205 Neb. 558, 288 N.W.2d 725 (1980); In re Clark, 281 S.E.2d 47 (N.C.1981).

While the Supreme Court determined that evidence of an accused's refusal to take a blood test does not infringe upon Fifth Amendment rights, their decision is not controlling of our decision herein. We alone determine the extent of protection afforded under our state constitution. Not only are we the final authority on interpretation of our state constitution, but also, as stated by the Supreme Court, "[i]t is elementary that states are free to provide greater protections in their criminal justice system than the Federal Constitution requires." California v. Ramos, --- U.S. ----, 103 S.Ct. 285, 74 L.Ed.2d 19 (1982) quoted in State v. Holmes, 338 N.W.2d 104 (S.D.1983); Opperman, supra; Reeves v. State, 599 P.2d 727 (Alaska 1979); Bierkamp v. Rogers, 293 N.W.2d 577 (Iowa 1980); People v. Hoshowski, 108 Mich.App. 321, 310 N.W.2d 228 (1981); State v. Flores, 280 Or. 273, 570 P.2d 965 (1977); Miller v. State, supra. Thus, as we stated in Opperman, supra, "we have the right to construe our state constitutional provision in accordance with what we conceive to be its plain meaning." 247 N.W.2d at 674-75.

We direct attention to the distinction between the state and federal constitutional provisions. Article VI, Sec. 9 of the South Dakota Constitution states: "No person shall be compelled in any criminal case to give evidence against himself ...." (Emphasis supplied.) In contrast, the Fifth Amendment to the United States Constitution states: "No person ... shall be compelled, in any criminal case, to be a witness against himself ...." (Emphasis supplied.) The constitutions of twenty-four states protect a person from giving "evidence" against himself. Hansen v. Owens, 619 P.2d 315 (Utah 1980) (J. Stewart dissenting). See, e.g., Ariz. Const. art. II, Sec. 10; Conn. Const. art. I, Sec. 8; Ill. Const. art. I, Sec. 10; Ky. Const. Sec. 11; Maine Const. art. I, Sec. 6; Miss. Const. art. III, Sec. 26; Neb. Const. art. I, Sec. 12; N.C. Const. art. I, Sec. 23; Okla. Const. art. II, Secs. 21, 27; Penn. Const. art. I, Sec. 9; Utah Const. art. I, Sec. 12.

State court decisions interpreting these provisions are split as to whether there is a distinction arising out of the particular language employed. Some of these decisions note the difference but do not conclude there is a distinction. See, e.g., Hill v. State, 366 So.2d 318 (Ala.1979); In re Parker, 357 So.2d 508 (La.1978); State v. Tullo, 366 A.2d 843 (Me.1976). Other decisions conclude there is not a distinction, see, e.g., State v. Tsavaris, 382 So.2d 56 (Fla.App.1980); McCrory v. State, 342 So.2d 897 (Miss.1977), while others conclude there is a distinction. Hansen, supra; Clark v. State, 336 So.2d 468, aff'd 363 So.2d 331 (Fla.App.1976). As the majority opinion in Hansen states,

the phrase "to give evidence against himself," as used in our constitution, was intended to mean something different and broader than the phrase "to be a witness against himself" as used in the federal constitution.

619 P.2d at 317. As the final authority on our state constitution, we now turn to examine our opinion in State v. Neville, supra.

The question we address here is whether SDCL 32-23-10.1 is a violation of Neville's state constitutional privilege against self-incrimination. As we stated in State v. Neville: "All presumptions are in favor of the constitutionality of a statute until the contrary is shown beyond a reasonable doubt. This presumption results in a heavy burden being placed on the assailant." 312 N.W.2d at 725 (citations omitted).

We first examine whether a refusal to take a blood test is physical or real evidence and accordingly is not protected by the privilege against self-incrimination. The privilege against self-incrimination extends only to communicative or testimonial evidence. Loveless v. State, 592 P.2d 1206 (Alaska 1979). It is generally accepted that real or physical evidence such as fingerprints, photographs and voice or handwriting samples are not protected by this privilege. See, e.g., Lusk v. State, 367 So.2d 1088 (Fla.App.1979); Anderson v. Com., 554 S.W.2d 882 (Ky.App.1977); State v. Sanders, 357 So.2d 1089 (La.1978). We note the majority of states whose constitutions contain the same language as ours, have concluded the privilege against self-incrimination does not apply to obtaining breathalyzer or other chemical evidence. See, e.g., Davis v. State, 174 Ind.App. 433, 367 N.E.2d 1163 (1977); State v Smith, 359 So.2d 157 (La.1978); State v. Swayze, 197 Neb. 149, 247 N.W.2d 440 (1976); State v. Flannery, 31 N.C.App. 617, 230 S.E.2d 603 (1976). Our decisions agree. State v. Maher, 272 N.W.2d 797 (S.D.1978). As we stated in Maher, "the United States Supreme Court held in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the protection of the Fifth Amendment goes only to testimonial or communicative evidence and does not protect one from being compelled to produce nontestimonial evidence." 272 N.W.2d at 799.

Some courts have held that, since the testing of bodily evidence does not violate this privilege, testimony of refusal to give such evidence does not violate this privilege. State v. Smith, supra. The reasoning utilized in reaching this conclusion is that refusal to submit is a physical act rather than a communication and thus not protected by this privilege. Hill v. State, supra. We disagree.

In State v. Neville, supra, we concluded that under our state constitution a defendant's refusal may be characterized as communicative evidence. In examining this issue in Neville, the Supreme Court recognized that "the distinction between real or physical evidence, on the one hand, and communications or testimony, on the other, is not readily drawn in many cases," 459 U.S. at ----, 103 S.Ct. at 922, 74 L.Ed.2d at 757, but refused to address this issue. As we stated in State v. Neville, supra, "[a] defendant's silence or refusal to submit to a requested blood test is a tacit or overt expression and communication of defendant's thoughts." 312 N.W.2d at 726. See Dudley v. State, 548 S.W.2d 706 (Tex.Cr.App.1977). On review, we agree with this, our previous statement. Accordingly, we affirm our holding in State v. Neville, supra, that Neville's refusal to submit to a blood test is evidence of a testimonial nature and thus within the...

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