Farmer v. Commonwealth , 12 Va. App. 337 ( 1991 )

UPON REHEARING EN BANC

Opinion

MOON, J.

We granted a rehearing en banc to the Commonwealth after a panel of this Court reversed Michael Larry Farmer’s driving under the influence conviction. See Farmer v. Commonwealth, 10 Va. App. 175, 390 S.E.2d 775 (1990). Farmer contends that the trial court erred in admitting evidence of his prior DUI convictions and admitting evidence of his refusal to perform a field sobriety test. We hold that the trial court did not err in admitting appellant’s prior DUI convictions and that the admission of Farmer’s refusal to perform a field sobriety test did not violate either the United States or Virginia Constitutions.

On the night of August 2, 1986, a Pulaski County sheriffs deputy, while on patrol in his vehicle, passed an automobile headed in the opposite direction. The officer recognized the driver of the vehicle as the appellant, Farmer. The officer knew that the appellant’s driver’s license had been suspended. The officer turned around and proceeded after the vehicle. The vehicle sped up as it was being followed by the deputy. When the deputy closed to within one-half block, the car made a quick turn into a closed gas station parking lot. The deputy pulled within seventy feet of the vehicle and saw no one leave the car. The officer saw motion in the car moving toward the back seat. When the officer approached the car he found Farmer lying down in the back seat behind the driver’s seat with no one at the wheel. There was another person in the right front passenger seat.

When the officer asked Farmer to step out of the car, Farmer replied, “to hell with you sons-of-bitches, I ain’t coming out of this car. I wasn’t driving this car. A black guy jumped out and ran with the car keys.”

After getting Farmer out of the car, the police officer detected a strong odor of alcohol about Farmer and noticed Farmer was unsteady on his feet, belligerent and abusive toward him. Additionally, Farmer’s speech was slurred and his eyes were glassy and watery. When asked to perform a field sobriety test, Farmer replied, “I ain’t doing a Goddamn thing for you, you sons-of-bitches, you are always out here f_g with everybody.”

The keys were not found in the ignition. After the car had been towed, Farmer’s mother attempted to retrieve the car. Because she had no keys, she called the jail and was able to obtain from the deputy sheriff a key from Farmer’s personal property.

Farmer testified that he had been to a “beer joint” from 6:00 or 7:00 p.m. until it closed at 11:45 p.m. He admitted that he consumed six or seven beers during this period. He claimed that he found a black man, Anthony Redd, to drive him home. After starting the ride home, Farmer claimed to have had to wait an hour and a half to two hours outside a community center while Mr. Redd met a woman. Farmer admitted to drinking about three more beers while he was waiting.

With regard to the admission of his prior DUI conviction, Farmer contends that under Code § 46.1-347.2 (now Code § 46.2-943), he was entitled to a bifurcated trial in which his prior convictions would not be introduced until after a finding of guilt. For the reasons stated in the panel’s decision, we hold “that evidence of prior DUI convictions does not constitute the ‘traffic record’ as contemplated by Code § 46.2-943 where the offense charged under Code § 18.2-266 is a subsequent offense of DUI punishable under Code § 18.2-270.” 10 Va. App. at 181, 390 S.E.2d at 777. We further hold “that proof of such charge requires proof of prior DUI convictions. For these reasons, the trial court did not err in admitting evidence of Farmer’s prior DUI convictions independent of his prior traffic record during the guilt stage of the trial.” Id.

Farmer contends that the admission of his refusal to take the field sobriety test violated his constitutional rights because it placed him in a position in which he had to participate in the test or bear the risk that his failure to do so might raise an inference of guilt. Under both the Fifth Amendment of the United States Constitution and Article I, § 8 of the Virginia Constitution, a criminal defendant cannot be compelled to give testimony against himself. The privilege against compelled testimony under Article I, § 8 of the Virginia Constitution is no broader in its application than its counterpart under the federal Constitution. The Virginia Supreme Court has held that provisions of the Fifth Amendment of the United States Constitution, are, “in effect, identical with the provision in the Virginia Bill of Rights.” Flanary v. Commonwealth, 113 Va. 775, 779, 75 S.E. 289, 291 (1912); see Walton v. City of Roanoke, 204 Va. 678, 682, 133 S.E.2d 315, 318 (1963) (faced with the argument that the Virginia Constitution provides greater protection against compelled testimony than the Federal Constitution, the Court stated: “[w]e consider these clauses to be identical in their application here”). Therefore, we find precedent interpreting the Fifth Amendment right against self-incrimination equally applicable to the challenges made under Article I, § 8 of the Virginia Constitution.

The privilege against self-incrimination “protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or commu-’ nicative nature.” Schmerber v. California, 384 U.S. 757, 761 (1966). “[I]n order to be testimonial, an accused’s communication must itself, explicitly or implicitly, relate a factual assertion or disclose information.” Doe v. United States, 487 U.S. 201, 210 (1988). In Schmerber, the Supreme Court stated that the Fifth Amendment “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.” 384 U.S. at 764. “[T]he fact of the refusal to perform tests that do not themselves constitute communicative or testimonial evidence is equally non-communicative and non-testimonial in nature.” State v. Hoenscheid, 374 N.W.2d 128, 130 (S.D. 1985).

In Gardner v. Commonwealth, 195 Va. 945, 81 S.E.2d 614 (1954), the Virginia Supreme Court found no violation of the state constitution in admitting evidence of a refusal to take a blood test since the act of refusal was not compelled. The Supreme Court of the United States has held that evidence of the results of a blood test or the refusal to take that test involves neither testimony nor compulsion forbidden under the provisions of the Fifth Amendment. South Dakota v. Neville, 459 U.S. 553, 564 (1983); see Pennsylvania v. Muniz, 496 U.S. 582, 604 n.19 (1990). We see no reason to distinguish between a refusal to submit to a blood test and the act of refusing to submit to a field sobriety test for purposes of what constitutes testimony or compulsion. In either case, the incriminating inference is drawn not from the testimonial act of the accused but from the physical act of the suspect. Asking a suspect to submit to a field sobriety test does not place the suspect in the “cruel trilemma” of self-accusation, perjury or contempt. See Pennsylvania v. Muniz, 496 U.S. at 596.

We, therefore, hold that neither the Fifth Amendment nor Article I, § 8 of the Virginia Constitution was violated by the admission into evidence of the fact of Farmer’s refusal to take a field sobriety test.

Accordingly, the judgment appealed from is affirmed.¹

Affirmed.

Baker, J., Barrow, J., Cole, J., Coleman, J., and Keenan, J., concurred.

1 The panel which originally considered this case affirmed the appellant’s conviction of driving after having been declared an habitual offender. That decision is not affected by this opinion.