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Farmer v. Commonwealth4/23/1991
riety tests, he could not statutorily require him to do so. There was no practical way Officer Hoback could compel cooperation with a dexterity test. In short, Officer Hoback could request cooperation and no more. For his part, Farmer had the option of complying with Officer Hoback's request or refusing. Either option would result in Farmer giving evidence. If he voluntarily submitted to the tests the results would be admissible against him at his trial for DUI because he was not compelled to provide that evidence. His refusal to submit to the test, however, is compelled because the Commonwealth has provided no choice in exercising his option not to submit to the test. Farmer was not refusing to provide statutorily required non-communicative
evidence such as the results of a blood test. He was simply refusing to provide evidence that was not statutorily required. Thus, as the Court stated in Green:
Because [Farmer] had no obligation to take the test, there could also be no conditions placed on his refusal. Use of the fact that he refused enables the state to obtain communicative evidence to which it would otherwise have no right, as a result of [Farmer's] refusal to provide non-communicative evidence to which it also had no right. The situation is thus a true Hobson's Choice.
68 Or. App. at 526, 684 P.2d at 579.
For these reasons I would hold that the evidentiary use of Farmer's refusal to take the field sobriety tests violates the protection of Article I, § 8 of the Virginia Constitution and therefore was not admissible at his trial for DUI. Because the admission of that evidence was not harmless error, I would reverse this conviction and remand this case for a new trial.
Finally, while I have not been able to persuade the majority from its view in this case, I dissent in order to emphasize the glaring inconsistency in the manner the Commonwealth will be permitted to utilize intoxication tests in DUI cases created by the majority's decision.
It is logically inconsistent to prohibit the use of an accused's refusal to take a blood or breath test as evidence in the accused's trial for DUI, while permitting the use of evidence of an accused's refusal to take a field sobriety test at such a trial. The Commonwealth is thus permitted to obtain evidence not statutorily required while it is prohibited from obtaining evidence an accused has "impliedly consented" to provide. Perhaps this inconsistency will be addressed by our legislature, if in its wisdom it decides to do so.
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