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State v. Mattson6/8/2005
nt right to refuse to provide sample for blood-alcohol test when probable cause exists to believe defendant was driving under the influence); Schmerber v. California, 384 US 757, 762-65, 86 SCt 1826, 1831-33, 16 LEd2d 908, 915-17 (1966) (holding there is no Fifth Amendment privilege against self-incrimination when the State seeks to obtain physical evidence from a suspect that does not involve testimonial compulsion or forced communication); State v. Hoenscheid, 374 NW2d 128, 130 (SD 1985) (holding no Fifth Amendment right to refuse to perform field sobriety tests when probable cause exists to believe defendant was driving under the influence). A defendant's refusal to perform such non-testimonial tests is admissible at trial, as the refusal is equally non-communicative and non-testimonial in nature. Neville, 459 US at 564, 103 SCt at 923, 74 LEd2d at 759; Hoenscheid, 374 NW2d at 130.
[ .] Defendant cites Elson v. State, 659 P2d 1195, 1198 (Alaska 1983), for the proposition that a refusal to consent to a search should not be admitted at trial, as "a person who is asked to consent to a search would not know whether he is protecting or prejudicing himself by choosing not to consent." However, in that case the defendant refused to consent to a "pat down," a physical search of his body, after being arrested. Id. at 1196. The defendant in that case was under the mistaken belief that he had a Fourth Amendment right to refuse the physical search. The Alaska Supreme Court's rationale for overturning the admission of the refusal was that it would chill others from exercising the right to refuse consent to future searches in violation of Fourth Amendment rights. Id. at 1199. However, in a case more fact specific to the instant case, the Alaska Court of Appeals held that there is no Fifth Amendment right to refuse to perform non-testimonial field sobriety tests, and that the government is not precluded from offering evidence of a defendant's refusal to take such non-testimonial tests. McCormick v. Municipality of Anchorage, 999 P2d 155, 159 (AlaskaCtApp 2000).
[ .] Defendant also cites several cases to support his proposition that a refusal to take a non-testimonial physical evidence test is not admissible at trial, including People v. Brooks, 778 NE2d 336 (IllAppCt 2002); People v. Eickhoff, 471 NE2d 1066 (IllAppCt 1984); and State v. Driver, 183 A2d 655 (NJ 1962). However, each of these cases is distinguishable from the instant case, as those cases dealt with testing mechanisms that are unreliable and therefore not admissible even if a defendant consents to the particular test. Brooks, 778 NE2d at 355 (noting that the results of a portable breath test are inadmissible in Illinois as evidence of intoxication); Eickhoff, 471 NE2d at 1068 (noting that the results of a polygraph test are inadmissible at trial and therefore the refusal to take the polygraph test is also inadmissible); Driver, 183 A2d at 658 (holding results of a polygraph test are inadmissible at trial, as is the refusal to take the test).
[ .] Defendant next argues that SDCL 32-23-10.1 makes the refusal to submit to chemical analysis of blood, urine, breath, or other bodily substance admissible into evidence at trial, but only with reference to driving under the influence statutes. Defendant argues this narrowly drawn statute should not be extended to automobile passengers who refuse to submit to a urinalysis after an arrest for possession of a controlled substance.
[ .] SDCL 32-23-10 provides 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 under the influence. The statutory scheme also provides that the re
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