State v. Blouin , 168 Vt. 119 ( 1998 )

Amestoy, C.J.

The State brings this interlocutory appeal from a district court order excluding evidence in a prosecution for driving under the influence, third offense, in violation of 23 V.S.A. § 1201(a)(2). The court excluded evidence of (1) defendant’s refusal to perform a roadside sobriety test, and (2) defendant’s response to the question of whether he had “burped, belched or vomited” during the fifteen minutes prior to administration of an evidentiary breath test. The State contends that no constitutional, statutory or other rule of law requires exclusion of the evidence. We agree and therefore reverse.

In September of 1995, after observing a vehicle being driven with a burned out headlight, a Vermont State Police trooper effected a stop of defendant’s vehicle, then approached on foot. The trooper detected the odor of alcohol emanating from defendant’s car, noticed that his eyes were watery and bloodshot, that his speech was slurred, and that a twelve-pack of beer and several empty containers lay on the passenger side floor. The trooper asked if he had been drinking, to which defendant responded, “[y]es, a couple of beers.” The trooper then asked defendant to step out of the car and perform a horizontal gaze nystagmus (“HGN”) test.¹ As the trooper later testified, defendant “wouldn’t follow the pen with his eyes, he kept moving his head, so I was unable to do that test.” Following this refusal to perform the HGN test, the trooper requested no further physical performance tests. The trooper then administered an Alcosensor test, results of which indicated alcohol in defendant’s system. Defendant was then taken to police barracks, placed in a processing room and then advised of his rights according to the standard Vermont State Police “DUI Processing Form.” As part of processing, defendant was advised of his constitutional rights under Miranda v. Arizona, 384 U.S. 436 (1966). He indicated his understanding of those rights and that he did not wish to answer any further questions.

The trooper continued processing by explaining defendant’s implied consent rights under 23 V.S.A. § 1202 et seq. Defendant waived the opportunity to consult with counsel and agreed to perform an evidentiary breath test. As part of administering the breath test, the trooper inquired whether defendant had “burped, belched or vomited within the last fifteen minutes.” The purpose of the question is to ensure that trace amounts of alcohol are not in the mouth which could render an inaccurate test result. According to the trooper, defendant initially said he had just burped, but then corrected himself and stated that he had “burped in the cruiser fifteen minutes ago.”

Defendant then performed an evidentiary breath test, which revealed a blood-alcohol content in excess of the legal limit. After the State brought DUI charges, defendant moved to exclude evidence of his refusal to perform the HGN test, as well as the “burp question” and defendant’s subsequent reply. The trial court excluded the challenged evidence, and granted the State permission to take interlocutory áppeal. See V.R.A.E 5(b); 13 V.S.A. § 7403.

I.

The State first argues that the district court improperly excluded evidence of defendant’s refusal to perform the HGN test. The State contends that a motorist’s refusal to perform a roadside sobriety test is relevant evidence in a DUI prosecution, and that no constitutional, statutory or other rule of law exists to render the evidence inadmissible. The district court, on the other hand, determined that “a trial court may not admit evidence of a refusal to comply with an officer’s request if the accused had a right to so refuse.” (Citing State v. Hedding, 122 Vt. 379, 382, 172 A.2d 599, 601 (1961)). Defendant argues that the district court’s ruling is correct because defendant “had the natural and inherent right to refuse” performance of the HGN test, and that using the refusal evidence against him would be “fundamentally unfair.” We disagree.

Relevant evidence is admissible, except as limited by state or federal constitution, statute, rule of evidence, or other principle of law. See V.R.E. 402. In this case, defendant concedes that he refused to perform the HGN test. Evidence that a motorist refused to perform a sobriety test is probative of guilt, and therefore relevant. See State v. Curavoo, 156 Vt. 72, 75, 587 A.2d 963, 964-65 (1991) (“There being no statutory ground for refusal to submit to field dexterity tests, ‘there is no reason not to consider refusal as evidence of consciousness of guilt.’”) (quoting State v. Hoenscheid, 374 N.W2d 128, 132 (S.D. 1985)). Inasmuch as defendant’s refusal is relevant, the issue is whether there exists any rule of law which would require exclusion.

As an initial matter, we find unavailing defendant’s argument that introduction of his refusal to perform the HGN test violates his privilege against self-incrimination. The HGN test elicits a person’s physical, rather than testimonial, response, and therefore does not trigger the privilege against self-incrimination. See Pennsylvania v. Muniz, 496 U.S. 582, 602 (1990) (request to perform HGN test elicits “physical” rather than “testimonial” evidence and thus does not violate privilege against self-incrimination); South Dakota v. Neville, 459 U.S. 553, 564 (1983) (refusal to take blood-alcohol test, after police lawfully requested it, is not an act coerced by officer, and thus is not protected by privilege against self-incrimination); State v. Brean, 136 Vt. 147, 151, 385 A.2d 1085, 1088 (1978) (evidence of refusal to perform blood-alcohol test not violative of federal or state privilege against self-incrimination).

Nor do we find any statute or other rule of law which would require exclusion of the refusal evidence. Defendant contends that the structure of the implied consent statute shows legislative intent to exclude evidence that a motorist refused to perform roadside sobriety tests such as the HGN. He bases this argument on the statute’s specific provision that “[i]f the [motorist] refuses to submit to an evidentiary [breath] test . . . the refusal may be introduced as evidence in a criminal proceeding.” 23 V.S.A. § 1202(b). In contrast, the statute does not specifically provide for admission of evidence of a motorist’s refusal to perform the HGN or other physical sobriety tests. He cites the principle of expressio unius est exclusio alterius to suggest legislative intent to exclude evidence of refusal to perform the HGN. We find this argument without merit.

The statute creates a detailed scheme under which motorists in Vermont give “implied consent” to provide an evidentiary breath sample for testing. See id. § 1202(a). The statute grants the motorist the right to refuse the test, see id. § 1202(b), but explicitly sets forth consequences that follow a refusal, see id. (refusal introduced in criminal proceeding); id. § 1202(d)(2) (license suspended); id. § 1202(d)(6) (if previously convicted, motorist subject to prosecution for “criminal refusal”). In light of the statute’s overall context, it is understandable why the Legislature would specify the admissibility of refusing the breath test.

On the other hand, the statute is silent with respect to physical sobriety tests such as the HGN. Defendant and the State agree that the police have a right to request performance of physical sobriety tests such as the HGN, and that defendant has a right to refuse performance of the test. We find that to be the correct position in light of the legitimate nature of the requested physical tests. For the same reason, inasmuch as defendant’s refusal to perform the HGN test goes to consciousness of guilt, see Curavoo, 156 Vt. at 75, 587 A.2d at 965, the refusal evidence is admissible. In the absence of statutory language prohibiting introduction of the refusal evidence, we will not invent it. See State v. Brooks, 162 Vt. 26, 29, 643 A.2d 226, 228 (1993).

For the same reason, Hedding, supra, may be distinguished. Hedding involved construction of an earlier version of the implied consent statute. When that case was decided, the statute provided that the motorist could refuse an evidentiary breath test, and that refusal would lead to license suspension. The statute was silent, however, on whether the refusal was admissible at trial. Given the other consequences of refusal articulated in the statute, the Hedding Court inferred legislative intent that the refusal be excluded. See 122 Vt. at 382, 172 A.2d at 601. The Court stated: ‘“The fact that a defendant did what he had an absolute right to do cannot be used to create any unfavorable inference against him.’” Id. (quoting People v. Stratton, 143 N.Y.S.2d 362, 365 (App. Div. 1955)). The holding in Hedding is “no longer viable” due to the change in statutory language. Brean, 136 Vt. at 152, 385 A.2d at 1088.

Defendant’s final argument on this issue is that, even if no rule of law expressly requires exclusion of the refusal evidence, the refusal is only weakly probative of guilt and may be excluded under V .R.E. 403. We need not address this contention because the district court excluded the evidence as a matter of law without considering its probative value. At trial the court should address the refusal’s probative value under the rules of evidence.

II.

The State’s second argument is that the district court erroneously excluded defendant’s answer to the “burp question.” Because the burp question is a means of bolstering the accuracy of the test, both the district court and the defendant characterize it as a question designed to elicit an incriminating response from the defendant. See Muniz, 496 U.S. at 602 n.14 (“[wjithout obtaining a waiver of the suspect’s Miranda rights, the police may not ask questions, even during booking, that are designed to elicit incriminatory admissions.”) (citations omitted). The State, on the other hand, contends that the burp question is used only to ensure accurate breath test results.

An individual in police custody may not be compelled to give “testimonial” evidence. See Schmerber v. California, 384 U.S. 757, 761 (1966). Police are not required, however, to refrain from taking “real or physical evidence” that relates to possible criminal activity. Id. at 764. We have held before that an evidentiary breath test is not testimonial in nature, but rather is physical, and thus may be administered even after a defendant has invoked Miranda rights. See State v. Bassett, 128 Vt. 453, 266 A.2d 438 (1970).

In Muniz, 496 U.S. at 603-04, the United States Supreme Court upheld the introduction of responses to “limited and carefully worded inquiries” as to whether a motorist understood instructions to a physical sobriety test, even after that individual was in custody and entitled to Miranda warnings.² The Court reasoned that the inquiries were “necessarily ‘attendant to’ the police procedure,” and were “not elicited in response to custodial interrogation.” Id. We find the burp question analogous to the inquiry at issue in Muniz.

The “interrogation” of which defendant complains came not in the course of “custodial interrogation” as that phrase has been defined by the United States Supreme Court, see Muniz, 496 U.S. at 603 (custodial interrogation did not include limited and carefully worded inquiries necessarily “attendant to” legitimate police procedure), but instead during the phase of proceedings in which defendant was asked — and agreed — to provide a breath sample. In the context of an arrest for driving while intoxicated, a police inquiry into whether the suspect will perform an evidentiary blood-alcohol test “is not an interrogation within the meaning of Miranda.” Neville, 459 U.S. at 564 n.15.

Nor are we persuaded that the burp question was devised to elicit incriminating responses to be used against the defendant in court. Defendant consented to the administration of a breath test. The burp question is designed to help assure the accuracy of the test — an objective as significant to the suspect as to the State. In and of itself, there is nothing incriminating about defendant’s response: if defendant had answered yes to the question, the officer would have merely waited another fifteen minutes to obtain accurate test results. In short, the burp question is not interrogation. See Rhode Island v. Innis, 446 U.S. 291, 301 (1980) (term “interrogation” under Miranda refers to “express questioning . . . [and] words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect”). The district court erred in excluding the burp question and answer.

Reversed and remanded.

1 The HGN test involves moving an object such as a pen across the subject’s field of vision to observe the manner in which the subject’s eyes follow the object. As the subject follows the object, an overabundance of eye twitching indicates possible intoxication. See 1 R. Erwin, Defense of Drunk Driving Cases § 10.04[5], at 10-18— 10-19 (1997).

2 The dissent attempts to distinguish Muniz from the instant ease by characterizing the incriminating utterances in Muniz as “voluntary.” They were voluntary only “in the sense that they were not elicited in response to custodial interrogation,” but instead came in response to “the limited and focused inquiries” necessarily ‘“attendant to’” legitimate police procedure. Muniz, 496 U.S. at 603-05. That is precisely the status of defendant’s answer to the burp question.