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State v. Morale9/6/2002
not 'compel' a defendant to testify against himself when it allows him the choice of either producing the evidence or facing criminal charges--and even a mandatory prison sentence ... for withholding it." Deering, 839 F.2d at 543. Thus, the State is entitled to use evidence of defendants' refusals in a prosecution for criminal refusal without violating the general Fifth Amendment privilege against self-incrimination.
The final issue is whether defendants' refusals were gathered in violation of the rights announced in Miranda. The Supreme Court has held that "[i]n 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." Neville, 459 U.S. at 564 n. 15, 103 S.Ct. 916. We hold that this conclusion is strengthened when the context shifts to prosecution for criminal refusal. Indeed, the protections and procedures of Miranda do not sensibly apply to this situation.
First, above all else Miranda was intended to protect defendants from abusive police practices used to obtain confessions. 384 U.S. at 445-58, 86 S.Ct. 1602. Such concerns are not relevant here. In asking a defendant to submit to a breath test, a police officer has no incentive to use coercive procedures to convince the defendant to refuse. In fact, the state's interest lies in the defendant submitting to the breath test, not refusing it. See Deering, 839 F.2d at 543 (noting that criminalizing the refusal increases the compulsion to submit to the breath test, not the compulsion to refuse the test, which is the evidence that was allegedly compelled); Neville, 459 U.S. at 564, 103 S.Ct. 916 (observing that the police officer wants the suspect to take the blood test). Finding a Miranda violation in this case would do nothing to eliminate impermissible police conduct. In fact, the question asked by the police officers here (i.e. "Do you wish to take the breath test?") is a required procedure for a DUI stop. 23 V.S.A. § 1202. It would be anomalous, to say the least, to suppress evidence gathered by asking the statutorily required question.
Second, Miranda rights were designed to protect defendants from being coerced into confessing to past crimes. See Miranda, 384 U.S. at 467, 86 S.Ct. 1602 (rights apply to a defendant subjected to in-custody interrogation designed to secure a confession). Here, the police officers asked defendants if they wished to perform a future act (the breath test). The police officers were not asking defendants to confess to a crime; rather their answers were the crime itself. Still, there was no inquiry, coercive *219 or otherwise, into defendants' prior actions (e.g. "Have you been drinking?") that Miranda warnings were intended to prevent.
In truth, despite the Miranda warnings, defendants in this case did not enjoy a right to remain silent, as far as responding to the request for a breath test, because a nonverbal refusal could still be grounds for prosecution. 23 V.S.A. § 1201(b) (a driver "shall not ... refuse" a reasonable request for a breath test); see Neville, 459 U.S. at 565, 103 S.Ct. 916 ("[T]he Miranda warnings emphasize the dangers of choosing to speak ... but give no warning of adverse consequences from choosing to remain silent."). Because of the inadequacies of the **190 Miranda warnings in the context of a DUI stop, the police officer reads the suspect an additional set of warnings about the possibility that refusing to take the test will result in criminal prosecution for refusal. 23 V.S.A. § 1202(d) (outlining the required warnings). We conclude that Miranda 's protections do not apply to evidence of refusal to submit to a breath test, and thus defendants' rights were not violated.
Reversed.
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