State v. Berge , 464 N.W.2d 595 ( 1991 )

OPINION

FORSBERG, Judge.

Appellant Stephen Wayne Berge was found guilty of driving under the influence in violation of Minn.Stat. § 169.121, subd. 1(a), 3(a) (1988). The trial court accepted as the strongest available evidence of guilt appellant’s refusal to submit to a breathalyzer test. Appellant contends this evidence was improperly admitted against him. We affirm.

FACTS

In the early morning hours of May 9, 1989, appellant was caught speeding by the Rice County Sheriff’s Department. When the deputy approached his vehicle to advise appellant of the basis for the stop, the sheriff detected the odor of alcohol and other indicia of intoxication. Appellant was asked to perform a variety of field sobriety tests, which he failed.

Appellant refused a blood alcohol test relying on his fifth amendment protection against self-incrimination. It was stipulated by the parties, and accepted by the court, that the state would rely upon appellant’s refusal of testing as the strongest available evidence of guilt. The trial court held the refusal admissible into evidence and found appellant guilty based upon stipulated facts. This appeal followed.

ISSUE

Is the introduction of a defendant’s refusal to submit to a blood test pursuant to Minn.Stat. § 169.121, subd. 2(b) compelled self-incrimination in violation of Minn. Const, art. I, § 7?

ANALYSIS

Appellant claims the admission into evidence of his refusal to submit to alcohol testing violates the Minnesota constitutional protection against compelled self-incrimination. The provision under which he claims protection, which is identical to the United States constitutional provision, states: “[n]o person shall * * * be compelled in any criminal case to be a witness against himself.” Minn. Const, art. I, § 7; U.S. Const, amend. V.

In support of his argument, appellant urges this court to follow State v. Andrews, 297 Minn. 260, 262-63, 212 N.W.2d 863, 864 (1973). In Andrews, the supreme court held the prohibition of compelled self-incrimination in both the United States Constitution and the Minnesota Constitution precluded the introduction of evidence of the refusal to submit to blood alcohol testing. The court went on to hold a 1971 amendment to Minn.Stat. § 169.121, subd. 2 deleting the language “but the refusal to permit the taking of specimens for such chemical analysis shall not be admissible in evidence” was not indicative of the legislature’s intent to allow such tests into evidence. Id. at 264, 212 N.W.2d at 865. Therefore there was an insufficient statutory, as well as a constitutional, basis for allowing introduction of refusal.

In State v. Willis, 332 N.W.2d 180 (Minn.1983), our supreme court again found the federal and state constitution protections against compelled self-incrimination coextensive. As in Andrews, the protection was measured against a 1982 revision of Minn.Stat. § 169.121. That statute provided:

Evidence of the absence of tests is admissible in a prosecution under this section without any comment and with a jury instruction, where applicable, that there shall be no speculation as to the reason for the absence and that no inference is to be drawn from the absence.

Minn.Stat. § 169.121, subd. 2(b) (1982).

Shortly before Willis was released, the United States Supreme Court decided South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983). That case went a step beyond Willis and held a statute allowing admission into evidence of a defendant’s refusal to submit to testing was not violative of the fifth amendment of the United States Constitution. Since that question was not presented by the Minnesota statute, the Minnesota Supreme Court noted “[wjhether we would interpret our state constitutional provision in the same manner [as Neville ] is not now before us.” Willis, 332 N.W.2d at 183 n. 1.

Apparently in response to the Neville decision, our legislature amended Minn. Stat. § 169.121, subd. 2(b) to its present form, which provides “[ejvidence of the refusal to take a test is admissible into evidence in a prosecution under this section.” 1983 Minn.Laws ch. 306, § 3. All parties agree the clear language of this statute evinces a legislative intent which cures the statutory infirmity found in Andrews. Likewise, there is agreement the statute passes constitutional muster under the fifth amendment to the United States Constitution. Thus, the question here is the one referred to but not answered in Willis; whether this statute offends the Minnesota constitutional protection against compelled self-incrimination.

We note initially that “[ejvery presumption is invoked in favor of the constitutionality of the statute.” Miller Brewing Co. v. State, 284 N.W.2d 353, 356 (Minn.1979). At the same time, we are cognizant of the axiom that “a state supreme court may interpret its own state constitution to offer greater protection of individual rights than does the federal constitution.” State v. Fuller, 374 N.W.2d 722, 726 (Minn.1985). While Fuller notes state constitutions constitute the “first line” of constitutional protection, it further recognizes the manner in which this protection is applied must be qualified:

This, of course, does not mean that we will or should cavalierly construe our constitution more expansively than the United States Supreme Court has construed the federal constitution. Indeed, a decision of the United States Supreme Court interpreting a comparable provision of the federal constitution that, as here, is textually identical to a provision of our constitution, is of inherently persuasive, although not necessarily compelling, force.

Id. at 726-27.

Despite the ample authority indicating Minnesota constitutional protections may be broader than United States constitutional protections, we have found no authority for the proposition that Minn. Const, art. I, § 7 is broader than the protection against compelled self-incrimination in U.S. Const, amend. V. We believe this is not the appropriate court to determine, on first impression, that the Minnesota Constitution offers such breadth of protection. In so holding, we take notice of the language in Fuller, 374 N.W.2d at 726, stating quite specifically that it is the province of the “state supreme court” to extend protection of the state constitution beyond that offered by the United States Constitution. We therefore read the Minnesota Constitution as coextensive with the United States Supreme Court’s reading in Neville, 459 U.S. 553, 103 S.Ct. 916, of the federal constitution on this point.¹

DECISION

Affirmed.

1 . We note the Minnesota Supreme Court has recently granted review of a decision of this court that considered the scope of Minn. Const, art. I, § 7 in relation to introduction of evidence of refusal without a Miranda warning. Friedman v. Comm'r of Pub. Safety, 455 N.W.2d 93 (Minn.App.1990), pet. for rev. granted (Minn. Jul. 6, 1990). Our decision in Friedman, 455 N.W.2d at 97-98, specifically considered the Andrews decision’s precedential value, and specifically found it does not extend Minnesota constitutional protections beyond federal limits. Our decision in Friedman is distinguishable in that the issue was not the constitutionality of Minn. Stat. § 169.121, subd. 2(b), but rather its application without a Miranda warning. While a decision by the Minnesota Supreme Court in Friedman may be instructive, it need not be dispositive of this case; the supreme court may choose to rule only on the Miranda issue. We therefore do not stay this opinion, but certainly encourage the parties to petition for review pending the outcome of Friedman.