City of Seattle v. Stalsbroten , 138 Wash. 2d 227 ( 1999 )

Durham, J.

— This case presents the question of whether it is constitutionally permissible for a trial court to admit evidence that a drunk driving defendant refused to perform field sobriety tests. Specifically, we must determine whether admitting such evidence violates the defendant’s Fifth Amendment right against self-incrimination. Because we conclude that a defendant’s refusal to perform a field sobriety test (FST) is nontestimonial evidence that is not compelled by the State, we hold that the Fifth Amendment does not prohibit admitting such refusal evidence. Accordingly, we conclude that the Court of Appeals erred in holding that admitting evidence of Stalsbroten’s refusal to perform an FST violated his right against self-incrimination. Finding no constitutional error in the trial court’s admission of this evidence, we affirm Stalsbroten’s conviction for drunk driving.

I

On February 14, 1995, Seattle Police Officer Curt Boyle observed Loyd Stalsbroten’s vehicle pull out of a parking lot after dark without its headlights on. Stalsbroten drove well below the posted speed limit, drifted between several lanes of traffic, and failed to pull over when Officer Boyle activated his emergency lights. Stalsbroten pulled over only after Boyle sounded his siren.

When Officer Boyle approached the vehicle to speak to the driver, he smelled a “strong odor of intoxicants.” Transcript of Proceedings (City’s Response to Motion for Discretionary Review) at 41. Stalsbroten’s eyes were bloodshot and tearing, and his speech was slurred and lethargic. After exiting the vehicle, Officer Boyle reported that Stalsbroten “had a hard time just standing still” and swayed four or five inches back and forth while standing on flat pavement. Id. at 44. During the course of Officer Boyle’s interactions with Stalsbroten at the scene, Stalsbroten introduced himself to the officer approximately 10 times, each time repeating “Hi. My Name is Loyd Stalsbroten, what is yours.” Id. at 49-50. Officer Boyle then asked Stalsbroten to perform some FSTs to see if it was safe for him to drive home. Officer Boyle informed him that the tests were voluntary, and Stalsbroten refused to take the tests, responding “No way.” Id. at 72-73.

Officer Boyle arrested Stalsbroten for driving under the influence, handcuffed him, and escorted him to the police car. Stalsbroten insisted that he could get into the car without assistance, but he eventually ended up “wedged ... in the car with his feet above his head.” Id. at 46. After situating the defendant in the back of his car, Officer Boyle advised him of his Miranda warning and transported him to the police station. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 A.L.R.3d 974 (1966). At the station, Officer Boyle read Stalsbroten the Implied Consent Warnings, and Stalsbroten refused to take a Breathalyzer test.

Before trial, Stalsbroten moved to suppress his refusal to take the FSTs. The municipal court denied this motion, concluding that there was no constitutional bar to admitting evidence of the refusal and that such evidence was relevant to show Stalsbroten’s consciousness of his guilt. At trial, Stalsbroten testified that he had consumed three tall glasses of whiskey and 7-Up within roughly two hours before the arrest. A unanimous jury found Stalsbroten guilty of Driving while Intoxicated. Stalsbroten appealed his conviction to the King County Superior Court. The Superior Court affirmed, specifically concluding that there was no error in admitting evidence of Stalsbroten’s refusal to take the FSTs. Stalsbroten then sought discretionary review by the Court of Appeals.

The Court of Appeals granted discretionary review solely on the issue of whether Stalsbroten’s refusal to perform an FST was inadmissible under state or federal constitutional protections against self-incrimination. City of Seattle v. Stalsbroten, 91 Wn. App. 226, 957 P.2d 260 (1998). The court held that “a suspect’s refusal to perform a voluntary FST is protected by constitutional provisions against self-incrimination because the refusal is testimonial in nature.” Id. at 228. According to the Court of Appeals, the trial court erred in not suppressing the evidence of Stalsbroten’s refusal. However, the Court of Appeals ultimately concluded that the error was harmless beyond a reasonable doubt due to the “overwhelming untainted evidence of Stalsbroten’s guilt.” Id. The court therefore affirmed Stalsbroten’s conviction.

II

The right against self-incrimination is protected by the Fifth Amendment, which provides that no person “shall be compelled in any criminal case to be a witness against himself.” U.S. Const, amend. V.¹ This right protects a defendant from being compelled to provide evidence of a “testimonial or communicative nature,” or from testifying against himself. Schmerber v. California, 384 U.S. 757, 761, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966). However, the Fifth Amendment does not prevent the admission of physical or real evidence. A state may compel physical or real evidence, but may not compel testimonial evidence. The element of compulsion or involuntariness is central to the right against self-incrimination: a defendant’s voluntary production of testimonial evidence is not protected by the Fifth Amendment. South Dakota v. Neville, 459 U.S. 553, 562, 103 S. Ct. 916, 74 L. Ed. 2d 748 (1983). Thus, admitting evidence that a defendant refused to take a FST violates his right against self-incrimination only if (1) the refusal evidence is testimonial and (2) the evidence is impermissibly compelled by the State.

A

As to the first requirement, we conclude that evidence of a defendant’s refusal to perform an FST is nontestimonial. Testimonial evidence is a communication that “explicitly or implicitly, relate[s] a factual assertion or disclose[s] information.” Pennsylvania v. Muniz, 496 U.S. 582, 594, 110 S. Ct. 2638, 110 L. Ed. 2d 528 (1990) (quoting Doe v. United States, 487 U.S. 201, 210, 108 S. Ct. 2341, 101 L. Ed. 2d 184 (1988)). As noted above, the Fifth Amendment protects only testimonial evidence. Accordingly, an accused may not be compelled to reveal, either directly or indirectly, “his knowledge of facts relating him to the offense or from having to share his thoughts and beliefs with the Government.” Id. at 595. In contrast, the Fifth Amendment offers no protection against the compulsion to provide blood samples, fingerprints, measurements, voice or writing samples, “to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture.” Schmerber, 384 U.S. at 764. Nontestimonial evidence is unprotected by the Fifth Amendment.

We have repeatedly held that the performance of an FST is nontestimonial. State v. Smith, 130 Wn.2d 215, 223, 922 P.2d 811 (1996); Heinemann v. Whitman County, 105 Wn.2d 796, 801, 718 P.2d 789 (1986); City of Mercer Island v. Walker, 76 Wn.2d 607, 612-13, 458 P.2d 274 (1969). Field sobriety tests produce only real or physical evidence, and do not communicate testimonial evidence. Walker, 76 Wn.2d at 612-13. In this way, the performance of an FST is similar to a defendant’s appearance at a police lineup or a defendant’s other physical actions. Id. Because a defendant’s performance of an FST is nontestimonial, Fifth Amendment protections do not apply.

The Court of Appeal in this case acknowledged that the performance of an FST is nontestimonial, but distinguished between a suspect’s performance of an FST and a suspect’s response to a question about whether he is willing to take the test. City of Seattle v. Stalsbroten, 91 Wn. App. 226, 232, 957 P.2d 260 (1998). According to the court, the question of whether the performance of an FST produces non-testimonial evidence is separate from the question of whether the request to perform an FST produces nontestimonial evidence. Id. The court agreed that the performance of an FST is nontestimonial, but concluded that a question about a suspect’s willingness to participate in an FST requires a testimonial response. Id. According to the court, a suspect’s refusal to perform an FST communicates to the officer the suspect’s implied belief that he or she thinks he or she will fail the test. Id. Given the fact that the refusal communicates a suspect’s “perception of intoxication,” the court concluded that the refusal to submit to FSTs is testimonial and therefore constitutionally protected. Id. at 235.

We disagree with this distinction. A suspect’s refusal to perform an FST is no more testimonial than the suspect’s actual performance of an FST. State v. Hoenscheid, 374 N.W.2d 128 (S.D. 1985). Just because refusal evidence has probative value does not mean that such evidence is testimonial. See Welch v. District Court, 461 F. Supp. 592, 595 (D. Vt. 1978) (discussing refusal evidence in the context of Breathalyzer tests), aff’d, 594 F.2d 903 (2d Cir. 1979). A refusal to submit to sobriety tests is not a statement, communicating testimonial evidence; rather, the refusal “is best described as conduct indicating a consciousness of guilt.” Newhouse v. Misterly, 415 F.2d 514, 518 (9th Cir. 1969) (discussing refusal evidence in the context of blood alcohol tests). The act of refusal “merely exposes [the defendant] to the drawing of inferences, just as does any other act.” State v. Wright, 116 N.M. 832, 835, 867 P.2d 1214, 1216 (Ct. App. 1993) (quoting McKay v. Davis, 99 N.M. 29, 31, 653 P.2d 860, 861 (1982)).

The argument that a refusal to take an FST communicates the suspect’s belief that the test will produce evidence of his or her guilt confuses reasonable inferences with communications. See Welch, 461 F. Supp. at 595. “Ferhaps one might infer from the refusal that it is an effort to conceal intoxication, but evidence of the refusal and of the words of refusal, standing alone, does not constitute testimonial evidence of any thought, reason or excuse for the refusal.” Id. (footnote omitted). Because a defendant’s refusal to perform an FST is not testimonial evidence, Fifth Amendment protections do not apply.

In light of the fact that a defendant’s refusal to perform an FST is nontestimonial, we conclude that the admission of the refusal evidence at trial does not violate the defendant’s right against self-incrimination. We will next briefly discuss the second prong of our Fifth Amendment analysis: whether Stalsbroten’s refusal to take the FST was impermissibly compelled. Clear precedent from this court and the United States Supreme Court indicates that such refusal evidence is not compelled.

B

Stalsbroten’s refusal to perform FSTs was not impermissibly compelled by the State. The Fifth Amendment prohibits only the use of coercion or “ ‘physical or moral compulsion’ ” to obtain testimonial evidence. South Dakota v. Neville, 459 U.S. 553, 562, 103 S. Ct. 916, 74 L. Ed. 2d 748 (1983) (quoting Fisher v. United States, 425 U.S. 391, 397, 96 S. Ct. 1569, 48 L. Ed. 2d 39 (1976)). Such compulsion exists when a defendant has no choice but to offer evidence against himself. In the classic context of a Fifth Amendment violation—forcing a defendant to testify—impermissible compulsion is evidenced by the “cruel trilemma” facing the defendant at trial: testify and submit to self-incrimination; testify falsely, risking perjury; or refuse to testify, risking contempt of court. Id. at 563. It is well established that the Fifth Amendment prevents the state from forcing this choice upon a defendant. Id. The right against self-incrimination may also prevent the state from presenting a defendant with a choice that involves such pain, danger, or severity that the defendant inevitably will he forced to prefer confession. Schmerber, 384 U.S. at 765 n.9.

In South Dakota v. Neville, the Supreme Court concluded that admitting evidence of a defendant’s refusal to submit to blood alcohol tests did not compel the defendant to be a witness against himself. Neville, 459 U.S. at 562. “[N]o impermissible coercion is involved when the suspect refuses to submit to take the [blood alcohol] test.” Id. Fifth Amendment values are not offended when the state offers a suspect the choice of taking a blood alcohol test or using his refusal against him. This is true because there is no constitutional right not to take the blood alcohol test. According to the Court, blood alcohol tests are so “safe, painless, and commonplace,” that the State could legitimately require suspects to take the test. Id. at 563 (citing Schmerber, 384 U.S. at 771). Given that the State could require suspects to take the test, the State can also legitimately offer suspects the option of refusing the test, with attendant penalties.

This court, following United States Supreme Court precedent, has held that no impermissible coercion is involved in admitting evidence of a defendant’s refusal to take a blood alcohol test. State v. Zwicker, 105 Wn.2d 228, 244, 713 P.2d 1101 (1986). Allowing the defendant’s refusal to be used in court is not inherently coercive, especially in light of the fact, that the Legislature could remove the defendant’s right to refuse altogether. “Attaching penalties to the exercise of the statutory right of refusal is not inherently coercive where the Legislature could withdraw this privilege altogether.” Id. at 242.

In contrast to blood alcohol and Breathalyzer tests, a defendant’s right to refuse to participate in FSTs is not specifically protected by statute. See RCW 46.20.308(2). However, the absence of an implied consent statute does not distinguish the admissibility of refusal evidence in the context of FSTs. “[A] defendant’s statements refusing to submit to reasonable physical evidence tests are admissible because they are not the product of impermissible coercion, not because statutes authorize their admission.” State v. Wright, 116 N.M. 832, 867 P.2d 1214, 1216 (Ct. App. 1993). See also State v. Superior Court, 154 Ariz. 275, 742 P.2d 286, 289 (Ct. App. 1987) (“We thus find the . . . distinction . . . between a refusal under an implied consent statute and a refusal to take a constitutionally-permissible field sobriety test to be meaningless.”). Without impermissible coercion, Fifth Amendment privileges simply do not apply.

Like blood alcohol and Breathalyzer tests, it is undisputed that in Washington, FSTs are voluntary and a Driving Under the Influence suspect has no legal obligation to perform an FST. City of Seattle v. Personeus, 63 Wn. App. 461, 819 P.2d 821 (1991). Attaching consequences to the exercise of the common law right to refuse to submit to an FST is no different from attaching consequences to the exercise of a statutory right of refusal. Just as with blood alcohol and Breathalyzer tests, admitting refusal evidence in the context of FSTs is equally permissible in light of the fact that the State could legally require suspects to perform FSTs.

We hold that admitting evidence of a defendant’s refusal to perform an FST at trial does not impermissibly compel the defendant to give evidence against himself within the meaning of the Fifth Amendment. Our conclusion that it is constitutionally permissible to admit evidence of a defendant’s refusal to take FSTs is thus based upon both our belief that the evidence is nontestimonial, and upon our precedent indicating that the evidence is not compelled.

Ill

It is important to note that our holding is consistent with analogous case law on the admissibility of refusal evidence in the context of Breathalyzers and blood alcohol tests. The United States Supreme Court has held that admitting evidence at trial of the defendant’s refusal to submit to blood alcohol tests does not offend the privilege against self-incrimination. Neville, 459 U.S. at 554. Likewise, admitting evidence of a defendant’s refusal to take a Breathalyzer test does not violate the Fifth Amendment. Pennsylvania v. Muniz, 496 U.S. 582, 604 n.19, 110 S. Ct. 2638, 110 L. Ed. 2d 528 (1990). Washington has followed this precedent, holding that admitting evidence of a defendant’s refusal to submit to blood alcohol or Breathalyzer tests does not violate a defendant’s right against self-incrimination. State v. Zwicker, 105 Wn.2d 228, 713 P.2d 1101 (1986); State v. Long, 113 Wn.2d 266, 272-73, 778 P.2d 1027 (1989). We see no reason to distinguish between chemical blood tests, Breathalyzers, and FSTs for these purposes. These cases are not based upon the unique nature of the different tests, but rather upon the general principle that refusing to submit to physical tests does not implicate the Fifth Amendment. To hold that the admission of refusal evidence is constitutionally permissible in the context of blood and breath tests but not in the context of FSTs would undermine the rationale upon which these cases rely.

Our conclusion is further bolstered by the fact that the majority of courts that have considered this issue have concluded that the admission of evidence that a defendant refused to perform an FST does not violate the defendant’s right against self-incrimination. State v. Taylor, 648 So. 2d 701 (Fla. 1995); State v. Washington, 498 So. 2d 136 (La. Ct. App. 1986); Wright, 867 P.2d 1214; Commonwealth v. McConnell, 404 Pa. Super. 439, 591 A.2d 288 (1991); State v. Hoenscheid, 374 N.W.2d 128 (S.D. 1985); Dawkins v. State, 822 S.W.2d 668 (Tex. Ct. App. 1991); Farmer v. Commonwealth, 12 Va. App. 337, 404 S.E.2d 371 (1991); State v. Mallick, 210 Wis. 2d 427, 565 N.W.2d 245 (Ct. App. 1997).

IV

We conclude that admitting evidence of a drunk driving suspect’s refusal to perform FSTs does not violate the suspect’s privilege against self-incrimination.² Not only is such evidence nontestimonial, but it is not compelled by the State. For these reasons, Fifth Amendment protections do not apply to evidence of a defendant’s refusal to take FSTs. The municipal court did not err in allowing testimony about Stalsbroten’s refusal to perform the FSTs. We therefore reverse the Court of Appeals on the issue of whether the trial court erred in admitting the refusal evidence. Admitting evidence of a defendant’s refusal to perform FSTs presents no Fifth Amendment problems. Accordingly, Stalsbroten’s conviction should be affirmed.

Guy, C.J., and Madsen, Talmadge, and Ireland, JJ., concur.

1 The text of the self-incrimination clause in the Washington Constitution differs from the text of the Fifth Amendment. It provides that “[n]o person shall he compelled in any criminal case to give evidence against himself.” Wash. Const. art. I, § 9. However, this court has held that the “Washington constitutional provision against self-incrimination envisions the same guarantee as that provided in the federal constitution.” State v. Moore, 79 Wn.2d 51, 57, 483 P.2d 630 (1971). See also State v. Zwicker, 105 Wn.2d 228, 242, 713 P.2d 1101 (1986).

2 AVe note, however, that the question of the admissibility and relevance of such evidence is not before us at this time. Our holding in this case is limited to the question of whether there is any constitutional problem with admitting evidence of a defendant’s refusal to perform FSTs. We conclude that there is no constitutional problem with admitting such evidence. This is not to say, however, that a trial court may not exclude evidence of a drunk driving suspect’s refusal to take an FST in a particular case if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice or jury confusion. See State v. Long, 113 Wn.2d 266, 272, 778 P.2d 1027 (1989). We leave the question of whether such evidence is relevant and admissible under the Rules of Evidence for another day.