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State v. Superior Court of Pima County12/15/1987
sal to take the breath test on the grounds that the refusal was not intentional or knowing. The city court magistrate denied the motion.
Hays sought relief from the denial in a special action brought in superior court. The superior court judge ruled that a refusal under A.R.S. § 28-691 "must be intentional or knowing" and ordered a hearing on defendant's motion to suppress.
The State appealed this order to the Court of Appeals. The Court of Appeals reversed the judgment of the superior court, holding that Hays was not entitled to a hearing by the trial court on the issue of whether the refusal to submit to the intoxilyzer test was an intelligent and knowing refusal. State v. Superior Court of Pima County, 155 Ariz. 403, 747 P.2d 564 (App.1986).
II
A.R.S. § 28-692(K), effective at the time of the conduct in question here, provided:
If a person under arrest refuses to submit to a test under the provisions of section 28-691, evidence of refusal shall be admissible in any civil or criminal action or proceeding arising out of acts alleged to have been committed while the person was driving or in actual physical control of a motor vehicle within this state while under the influence of intoxicating liquor. The issue of refusal shall be an issue of fact to be determined by the trier of fact in all cases.
Laws 1983, Ch. 279, § 6 (emphasis added).
Our recent decision in State v. Superior Court, 154 Ariz. 574, 744 P.2d 675 (1987), held that the statutory provision A.R.S. § 28-692(K) was constitutional. In that case we also held that the refusal to take a chemical breath test was not testimonial evidence but physical evidence only, and the fact of refusal was admissible in a criminal trial for a violation of A.R.S. § 28-692(A). Our ruling in State v. Superior Court, supra, disposes of the first issue presented for review by Hays. The Court of Appeals in this case did not err in holding A.R.S. § 28-692(K) was constitutional.
III
Hays argues that Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), which requires a pretrial evidentiary hearing to determine voluntariness of a criminal defendant's confession, is applicable. We disagree. The essential difference between Jackson and this case is that Jackson involved a confession, which is testimonial evidence. As noted earlier, evidence of refusal to take a chemical breath test is not testimonial evidence but is only physical evidence. State v. Superior Court, supra. See South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983) (admission into evidence of defendant's refusal to submit to blood-alcohol test does not offend the right against self-incrimination). The privilege against self-incrimination is only a bar against communicative or testimonial evidence, not against real or physical evidence. Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 1830, 16 L.Ed.2d 908 (1966); Campbell v. Superior Court, 106 Ariz. 542, 552 n. 8, 479 P.2d 685, 695 n. 8 (1971).
IV
Hays contends that even if the refusal is considered non-testimonial, the fundamental notion of fairness inherent in due process prevents use of refusal evidence where a defendant did not knowingly or intelligently refuse to take the test.
As noted earlier, we are not dealing with testimonial evidence, so the use of the ter
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