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State v. Morale9/6/2002
In this case, we confront the issue of whether admitting evidence of a DUI suspect's refusal to submit to a breath test violates the suspect's constitutional privilege against self-incrimination in a prosecution for criminal refusal. We decide that a defendant's statement refusing to submit to a breath test does not fall within the category of compelled testimony protected by either the general Fifth Amendment privilege against self-incrimination or by the rights announced in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Recognizing that the State is entitled to compel a DUI suspect to submit to a breath test, we hold that the State is equally entitled to use evidence of a refusal in the prosecution of a defendant for that refusal without violating his or her privilege against self- incrimination.
Defendants Robert Knapp, Ralph Morale, and Gordon Parker, whose cases were consolidated in the trial court, were each separately arrested and processed for DUI under similar circumstances. As part of that process, defendants were read their Miranda rights, and each declined to waive those rights. The police officer in each case then read defendants the implied consent advisory, derived from 23 V.S.A. § 1202, that precedes the administration of a breath test to determine a suspect's blood alcohol content. The advisory informs defendants that if the result of the test indicates that they are under the influence of alcohol they are subject to criminal charges, but that if defendants refuse to submit to the test their licences may be subject to civil suspension, or, if they have previously been convicted of DUI, they may be charged with criminal refusal. In each case, defendant was asked if he would give a sample of his breath as evidence, and in each case, defendant answered no.
Defendants were charged with criminal refusal in violation of 23 V.S.A. § 1201(b). [FN*] In district court, defendants moved to suppress the evidence of the refusals, arguing that their use would violate the constitutional protections against compelled self-incrimination. Noting that defendants gave their refusal after they had invoked their Miranda rights, the court held the responses should be suppressed. The court held that because defendants' answers were the very act giving rise to the criminal charges defendants faced, the responses could not fit within the de minimis exceptions to Miranda that allow *215 police officers to ask standard booking questions. The State was granted this interlocutory appeal, and we reverse.
FN* That statute reads, "A person who has previously been convicted of a violation of this section shall not operate, attempt to operate, or be in actual physical control of any vehicle on a highway and refuse a law enforcement officer's reasonable request under the circumstances for an evidentiary test where the officer had reasonable grounds to believe the person was in violation of [the criminal DUI statute]."
The issue before us is narrow. The United States Supreme Court has previously determined that refusal evidence may be admitted in prosecution of DUI cases without running afoul of the Fifth Amendment or Miranda. South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983). The case before us therefore presents only the question of whether this holding should extend to cover prosecution for the refusal itself. Although the district court appears to have **187 based its decision on a violation of Miranda rights, defendants also claim that admission of refusal evidence violates the general Fifth Amendment protections against self-incrimination. As each of these grounds for suppression involve somewhat separate inquiries, and are questions of law, we will address both. See In re Taft Corn
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