DocketNumber: 81-1453
Judges: O'Connor, Burger, Brennan, White, Blackmun, Powell, Rehnquist, Stevens, Marshall
Filed Date: 2/22/1983
Status: Precedential
Modified Date: 10/19/2024
delivered the opinion of the Court.
Schmerber v. California, 384 U. S. 757 (1966), held that a State could force a defendant to submit to a blood-alcohol test without violating the defendant’s Fifth Amendment right against self-incrimination. We now address a question left open in Schmerber, supra, at 765, n. 9, and hold that the admission into evidence of a defendant’s refusal to submit to such a test likewise does not offend the right against self-incrimination.
I
Two Madison, South Dakota, police officers stopped respondent’s car after they saw him fail to stop at a stop sign. The officers asked respondent for his driver’s license and asked him to get out of the car. As he left the car, respondent staggered and fell against the car to support himself.
South Dakota law specifically declares that refusal to submit to a blood-alcohol test “may be admissible into evidence at the trial.” S. D. Comp. Laws Ann. §32-23-10.1 (Supp. 1982).
Since other jurisdictions have found no Fifth Amendment violation from the admission of evidence of refusal to submit to blood-alcohol tests,
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The situation underlying this case — that of the drunk driver — occurs with tragic frequency on our Nation’s highways. The carnage caused by drunk drivers is well documented and needs no detailed recitation here. This Court, although not having the daily contact with the problem that the state courts have, has repeatedly lamented the tragedy. See Breithaupt v. Abram, 352 U. S. 432, 439 (1957) (“The increasing slaughter on our highways, most of which should be avoidable, now reaches the astounding figures only heard of on the battlefield”); Tate v. Short, 401 U. S. 395, 401 (1971) (Blackmun, J., concurring) (deploring “traffic irresponsibility and the frightful carnage it spews upon our highways”); Perez v. Campbell, 402 U. S. 637, 657, 672 (1971) (Blackmun, J., concurring) (footnote omitted) (“The slaughter on the highways of this Nation exceeds the death toll of all our
As part of its program to deter drinkers from driving, South Dakota has enacted an “implied consent” law. S. D. Comp. Laws Ann. § 32-23-10 (Supp. 1982). This statute declares that any person operating a vehicle in South Dakota is deemed to have consented to a chemical test of the alcoholic content of his blood if arrested for driving while intoxicated. In Schmerber v. California, 384 U. S. 757 (1966), this Court upheld a state-compelled blood test against a claim that it infringed the Fifth Amendment right against self-incrimination, made applicable to the States through the Fourteenth Amendment.
Schmerber, then, clearly allows a State to force a person suspected of driving while intoxicated to submit to a blood-alcohol test.
South Dakota further discourages the choice of refusal by allowing the refusal to be used against the defendant at trial. S. D. Comp. Laws. Ann. §§32-23-10.1 and 19-13-28.1 (Supp. 1982). Schmerber expressly reserved the question of whether evidence of refusal violated the privilege against self-incrimination. 384 U. S., at 765, n. 9. The Court did indicate that general Fifth Amendment principles, rather than the particular holding of Griffin v. California, 380 U. S. 609 (1965), should control the inquiry. 384 U. S., at 766, n. 9.
Most courts applying general Fifth Amendment principles to the refusal to take a blood test have found no violation of the privilege against self-incrimination. Many courts, following the lead of Justice Traynor’s opinion for the California Supreme Court in People v. Sudduth, 65 Cal. 2d 543, 421 P. 2d 401 (1966), cert. denied, 389 U. S. 850 (1967), have reasoned that refusal to submit is a physical act rather than a communication and for this reason is not protected by the
While we find considerable force in the analogies to flight and suppression of evidence suggested by Justice Traynor, we decline to rest our decision on this ground. As we recognized in Schmerber, 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. 384 U. S., at 764.
As we stated in Fisher v. United States, 425 U. S. 391, 397 (1976), “[t]he Court has held repeatedly that the Fifth Amendment is limited to prohibiting the use of ‘physical or moral compulsion’ exerted on the person asserting the privilege.” This coercion requirement comes directly from the constitutional language directing that no person “shall be compelled in any criminal case to be a witness against himself.” U. S. Const., Arndt. 5 (emphasis added). And as Professor Levy concluded in his history of the privilege, “[t]he element of compulsion or involuntariness was always an ingredient of the right and, before the right existed, of protests against incriminating interrogatories.” L. Levy, Origins of the Fifth Amendment 328 (1968).
Here, the State did not directly compel respondent to refuse the test, for it gave him the choice of submitting to the test or refusing. Of course, the fact the government gives a defendant or suspect a “choice” does not always resolve the
In contrast to these prohibited choices, the values behind the Fifth Amendment are not hindered when the State offers a suspect the choice of submitting to the blood-alcohol test or having his refusal used against him. The simple blood-alcohol test is so safe, painless, and commonplace, see Schmerber, 384 U. S., at 771, that respondent concedes, as he must, that the State could legitimately compel the suspect, against his will, to accede to the test. Given, then, that the offer of taking a blood-alcohol test is clearly legitimate, the action becomes no less legitimate when the State offers a second option of refusing the test, with the attendant penalties for making that choice. Nor is this a case where the State has subtly coerced respondent into choosing the option it had no right to compel, rather than offering a true
We recognize, of course, that the choice to submit or refuse to take a blood-alcohol test will not be an easy or pleasant one for a suspect to make. But the criminal process often requires suspects and defendants to make difficult choices. See, e. g., Crampton v. Ohio, decided with McGautha v. California, 402 U. S. 183, 213-217 (1971). We hold, therefore, that a refusal to take a blood-alcohol test, after a police officer has lawfully requested it, is not an act coerced by the officer, and thus is not protected by the privilege against self-incrimination.
III
Relying on Doyle v. Ohio, 426 U. S. 610 (1976), respondent also suggests that admission at trial of his refusal violates the Due Process Clause because respondent was not fully warned of the consequences of refusal. Doyle held that the Due Process Clause prohibits a prosecutor from using a defendant’s silence after Miranda warnings to impeach his testimony at trial. Just a Term before, in United States v. Hale, 422 U. S. 171 (1975), we had determined under our supervisory power that the federal courts could not use such silence for impeachment because of its dubious probative value. Al
Unlike the situation in Doyle, we do not think it fundamentally unfair for South Dakota to use the refusal to take the test as evidence of guilt, even though respondent was not specifically warned that his refusal could be used against him at trial. First, the right to silence underlying the Miranda warnings is one of constitutional dimension, and thus cannot be unduly burdened. See Miranda, supra, at 468, n. 37. Cf. Fletcher v. Weir, 455 U. S. 603 (1982) (postarrest silence without Miranda warnings may be used to impeach trial testimony). Respondent’s right to refuse the blood-alcohol test, by contrast, is simply a matter of grace bestowed by the South Dakota Legislature.
Moreover, the Miranda warnings emphasize the dangers of choosing to speak (“whatever you say can and will be used as evidence against you in court”), but give no warning of adverse consequences from choosing to remain silent. This imbalance in the delivery of Miranda warnings, we recognized in Doyle, implicitly assures the suspect that his silence will not be used against him. The warnings challenged here, by contrast, contained no such misleading implicit assurances as to the relative consequences of his choice. The officers explained that, if respondent chose to submit to the test, he had the right to know the results- and could choose to take an additional test by a person chosen by him. The officers did not specifically warn respondent that the test results could be used against him at trial.
While the State did not actually warn respondent that the test results could be used against him, we hold that such a failure to warn was not the sort of implicit promise to forgo use of evidence that would unfairly “trick” respondent if the evidence were later offered against him at trial. We therefore conclude that the use of evidence of refusal after these warnings comported with the fundamental fairness required by due process.
IV
The judgment of the South Dakota Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
The officer read the Miranda warning from a printed card. He read: “You have the right to remain silent. You don’t have to talk to me unless you want to do so. If you want to talk to me I must advise you whatever you say can and will be used as evidence against you in court. You have the right to confer with a lawyer, and to have a lawyer present with you while you’re being questioned. If you want a lawyer but are unable to pay for one, a lawyer will be appointed to represent you free of any cost to you. Knowing these rights, do you want to talk to me without having a lawyer present? You may stop talking to me at any time. You may also demand a lawyer at any time.” App. 8. See Miranda v. Arizona, 384 U. S. 436, 467-473 (1966).
The card read: “I have arrested you for driving or being in actual physical control of a vehicle while under the influence of alcohol or drugs, a violation of S. D. C. L. 32-23-1. I request that you submit to a chemical test of your blood to determine your blood alcohol concentration. You have the right to refuse to submit to such a test and if you do refuse no test will be given. You have the right to a chemical test by a person of your own choosing at your own expense in addition to the test I have requested. You have the right to know the results of any chemical test. If you refuse the test I have requested, your driver’s license and any non-residence driving privilege may be revoked for one year after an opportunity to appear before a hearing officer to determine if your driver’s license or non-residence driving privilege shall be revoked. If your driver’s license or non-residence driving privileges are revoked by the hearing officer, you have the right to appeal to Circuit Court. Do you understand what I told you? Do you wish to submit to the chemical test I have requested?” App. 8-10.
Responding to other questions, respondent informed the officers that he had been drinking “close to one ease” by himself at home, and that his last drink was “about ten minutes ago.” Tr. of Preliminary Hearing 8.
South Dakota Comp. Laws Ann. §19-13-28.1 (Supp. 1982) likewise declares that, notwithstanding the general rule in South Dakota that the claim of a privilege is not a proper subject of comment by judge or counsel, evidence of refusal to submit to a chemical analysis of blood, urine, breath, or other bodily substance “is admissible into evidence” at a trial for driving under the influence of alcohol. A person “may not claim privilege against self-incrimination with regard to admission of refusal to submit to chemical analysis.” Ibid.
As Justice Stevens emphasizes, post, at 567, the South Dakota Supreme Court clearly held that the statute violated the State as well as Federal Constitution. Although this would be an adequate state ground for decision, we do not read the opinion as resting on an independent state ground. Rather, we think the court determined that admission of this evidence violated the Fifth Amendment privilege against self-incrimination, and then concluded without further analysis that the state privilege was
The analysis of the court below was remarkably similar to that of the state-court opinion reviewed in Delaware v. Prouse, 440 U. S. 648, 651-653 (1979). That state-court opinion analyzed various decisions interpreting the Federal Constitution, concluded that the Fourth Amendment violated the police procedure at issue there, and then summarily held that the State Constitution was therefore also infringed. As we characterized their analysis, every police practice found to violate the Fourth Amendment would, without further analysis, be held to be contrary to the State Constitution as well. In such a situation, we concluded, this Court has jurisdiction to review the federal constitutional issue decided below.
Justice Stevens, while expressing general dissatisfaction with Prouse, attempts to distinguish it by noting that the state court there had said the State and Federal Constitutions are “ ‘substantially similar’ and that ‘a violation of the latter is necessarily a violation of the former.’ ” Post, at 571, n. 7. But the South Dakota Supreme Court made virtually identical statements. In a footnote, the court recognized the textual difference between the federal and state constitutional privileges against self-incrimination, but noted that this Court in Schmerber had interpreted the Fifth Amendment prohibition “in light of the more liberal definition of ‘evidence’ as used in our state constitution.” 312 N. W. 2d, at 726, n. Therefore, the court concluded, “[s]ince the Fifth Amendment of the U. S. Constitution is broad enough to exclude this evidence, there is no need to draw a distinction at this time between S. D. Const. Art. VI, § 9 and the Fifth Amendment of the U. S. Constitution.” Ibid. The court could not have stated more clearly that it simply assumed that any violation of the Fifth Amendment privilege also violated, without further analysis, the state privilege. This was precisely the reasoning we found sufficient in Prouse to give us jurisdiction to hear the case and decide the federal constitutional issue.
The South Dakota Supreme Court also remanded for a determination whether respondent’s statement that he was too drunk to pass the test was made after a voluntary waiver of his right to remain silent. As yet, of course, there has been no final judgment in this ease. This Court nevertheless has jurisdiction under 28 U. S. C. § 1257(3) to review the federal constitutional issue which has been finally determined, because if the State ultimately prevails at trial, the federal issue will be mooted; and if the State loses at trial, governing state law, S. D. Comp. Laws Ann. §§ 23A-32-4 and 23A-32-5 (1979), prevents it from again presenting the federal claim for review. See California v. Stewart (decided with Miranda v. Arizona, 384 U. S. 436, 498, n. 71 (1966)); Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 481 (1975).
See, e. g., cases cited in nn. 11 and 13, infra.
Schmerber also rejected arguments that the coerced blood test violated the right to due process, the right to counsel, and the prohibition against unreasonable searches and seizures.
Schmerber did caution that due process concerns could be involved if the police initiated physical violence while administering the test, refused to respect a reasonable request to undergo a different form of testing, or responded to resistance with inappropriate force. 384 U. S., at 760, n. 4.
Griffin held that a prosecutor’s or trial court’s comments on a defendant’s refusal to take the witness stand impermissibly burdened the defendant’s Fifth Amendment right to refuse. Unlike the defendant’s situation in Griffin, a person suspected of drunk driving has no constitutional right to refuse to take a blood-alcohol test. The specific rule of Griffin is thus inapplicable.
See, e. g., Newhouse v. Misterly, 415 F. 2d 514 (CA9 1969); Hill v. State, 366 So. 2d 318, 324-325 (Ala. 1979); Campbell v. Superior Court, 106 Ariz. 542, 479 P. 2d 685 (1971); State v. Haze, 218 Kan. 60, 542 P. 2d 720 (1975) (refusal to give handwriting exemplar); City of Westerville v. Cunningham, 15 Ohio St. 2d 121, 239 N. E. 2d 40 (1968).
The Court in Schmerber pointed to the lie detector test as an example of evidence that is difficult to characterize as testimonial or real. Even though the test may seek to obtain physical evidence, we reasoned that to compel a person to submit to such testing “is to evoke the spirit and history of the Fifth Amendment.” 384 U. S., at 764. See also People v. Ellis, 65 Cal. 2d 529, 537, and n. 9, 421 P. 2d 393, 397, and n. 9 (1966) (analyzing lie detector tests as within the Fifth Amendment privilege). A second example of seemingly physical evidence that nevertheless invokes Fifth Amendment protection was presented in Estelle v. Smith, 451 U. S. 454 (1981). There, we held that the Fifth Amendment privilege protected compelled
Many courts have found no self-incrimination problem on the ground of no coercion, or on the analytically related ground that the State, if it can compel submission to the test, can qualify the right to refuse the test. See, e. g., Welch v. District Court, 594 F. 2d 903 (CA2 1979); State v. Meints, 189 Neb. 264, 202 N. W. 2d 202 (1972); State v. Gardner, 52 Ore. App. 663, 629 P. 2d 412 (1981); State v. Brean, 136 Vt. 147, 385 A. 2d 1085 (1978).
Nothing in the record suggests that respondent made or could sustain such a claim in this ease.
In the context of an arrest for driving while intoxicated, a police inquiry of whether the suspect will take a blood-alcohol test is not an interrogation within the meaning of Miranda. As we stated in Rhode Island v. Innis, 446 U. S. 291, 301 (1980), police words or actions “normally attendant to arrest and custody” do not constitute interrogation. The police inquiry here is highly regulated by state law, and is presented in virtually the same words to all suspects. It is similar to a police request to submit to fingerprinting or photography. Respondent’s choice of refusal thus enjoys no prophylactic Miranda protection outside the basic Fifth Amendment protection. See generally Arenella, Schmerber and the Privilege Against Self-Incrimination: A Reappraisal, 20 Am. Crim. L. Rev. 31, 56-58 (1982).
Even though the officers did not specifically advise respondent that the test results could be used against him in court, no one would seriously contend that this failure to warn would make the test results inadmissible, had respondent chosen to submit to the test. Cf. Schneckloth v. Busta
Since the State wants the suspect to submit to the test, it is in its interest fully to warn suspects of the consequences of refusal. We are informed that police officers in South Dakota now warn suspects that evidence of their refusal can be used against them in court. Tr. of Oral Arg. 16.