Larry Deering v. Harold M. Brown, Attorney General of the State of Alaska

POOLE, ting refusing, and to the test Before FERGUSON or the state did directly compel CANBY, Judges. not Circuit defendant to refuse 562-64, Id. at the test. 103 S.Ct. at 922- POOLE, Judge: Circuit submitting 23.1 The choice between to a legitimately blood test which could have INTRODUCTION Schmerber, compelled or, been under alter- “guarantees The fifth amendment ... having natively, the refusal used as evi- of a to remain silent un- court, dence in was not so coercive as to speak less he chooses to in the unfettered compulsion in amount violation of the will, expression and to suffer no own 563-64, Id. fifth amendment. 103 Malloy penalty for such silence.” ... 922-23. The fact that refusal was ac- Hogan, 378 1493- companied by the civil of license Schmerber v. revocation did not affect the Court’s con- California, Id. clusion. 103 S.Ct. at 922. (1966), L.Ed.2d 908 the United States Su- goes step The case before us one further. preme Court ruled that the fifth amend- presented question We are with the novel protects being only ment an accused application of the Neville rationale of the compelled testify against himself or oth- to the unusual situation in which a state provide the erwise state with evidence of a breathalyz- has made refusal to submit to a communicative nature. offense, separate er test itself that, then concluded because the punishable by a minimum sentence of three results of a “breathalyzer” blood alcohol days jail. Whether such use of a refusal physical test are rather than testimonial or to take a test for intoxication violates the evidence, communicative a state has the guarantee against fifth amendment’s self power to administer such a test question impres- incrimination of first infringing defendant’s will without on his circuit, apparently sion in this and has been privilege. fifth amendment addressed no other federal court.2 in South Dakota v. Ne recently More ville, FACTS the Court addressed a is, reserved On appellant Larry November whether, charge in order Deering was arrested an Alaska state driving alcohol, trooper under the influence of operating a vehicle while intoxi- admission into evidence of a was advised of his Mi- Deering defendant’s cated. randa rights to submit being test both before and after Although engaged Court noted that refusal to sub- other unlawful conduct sus- [the appears mit to a blood alcohol test to be a pect] hamper investigation with intent to physical act rather than a testimonial communi- arrested”). offense for which he was cation, Id. at it Appeals The New York has not ad- explicitly declined to rest its decision on this constitutionality dressed the of the state’s crimi- distinction. statute, nal refusal and the lower New York conflicting courts have reached results. Com- precedent. 2. Nor is there much state court Al- Hamza, pare People v. 109 Misc.2d though impose penalties most states civil (Gates Ct.1981)(imposi- N.Y.S.2d Town only refusal to take a two penalties tion of criminal rather than civil states—Alaska and New York—have criminal- unconstitutional), refusal makes the statute ized it. Brockum, People v. A.D.2d N.Y.S.2d Appeals The Alaska Court of has held that the (statute (N.Y.App.Div.1982) does not Alaska criminal refusal statute does not violate taking State, violate the fifth amendment because the the fifth amendment. Coleman v. (Alaska (r Ct.App.1983) P.2d breath does not involve testimonial 1365-66 efus compulsion). al to take greater protection test is "entitled to no given than would be station, Deering's At station. taken I. Did Admission of Refusal Vi- arresting officer by the asked olate the Fifth Amendment? Deering was breathalyzer test. ato submit he would if A. Was ~srefusal a "testimo- Deer- told The officer respond. He did nial" communication? test constituted take the ing that misdemeanor, further above, a criminal As we mentioned in order to merit respond, if he did Deering that warned protections of the fifth amendment a refusal. deemed his silence privilege against incrimination, self a de silent. Deering remained fendant's evidence must be both "com pelled" by charged with subsequently the state and of a "testimonial" Deering was or "communicative" nature. See Schmer (DWI), Alaska intoxicated driving while ber, 86 S.Ct. at 1832. We 28.35.030(a), refusal and with Stat. § test, Alaska Stat. turn first to the whether Deer- ing's refusal constituted "testimonial" evi are 28.35.032(f). violations Both § dence within the context of the crimes Alaska, carry- A” misdemeanors “class charged. pris- year of one penalties ing maximum require also Both $1000. a fine of on and First, clearly this circuit has held conviction upon sentences minimum that the refusal to take a blood-alcohol prison.3 days three charge driving in the context of a while trial, Deering’s silent jury At his intoxicated, is nontestimonial conduct indi supporting both as evidence used was cating guilt, a consciousness of Newhouse Deering’s court denied The trial charges. Misterly, (9th 415 F.2d Cir. as violative suppress the refusal motions 1969), denied, cert. Deering rights, and amendment fifth of his Thus it is After offenses. guilty of both found was Deering's clear that the state's use of re Appeals affirmed proving charge fusal in the DWI was non- Supreme Court Alaska and the conviction implicate testimonial and does not the fifth Deering filed appeal,4 hear refused amendment. pursu- corpus of habeas for a writ petition in United States 2254 the 28 U.S.C. ant § Deering argues, however, that Alaska, the district Court for District separate charge the context of the below, state as he had alleging, breathalyzer refusal, of the test was somehow transformed into a his refusal to take amendment his fifth proceedings The dis- incrimination. self rights argues that, "testimonial" statement. He and issued petition court denied trict subject because the test is the pursuant probable cause certificate charge Alaska, of a distinct criminal effects of refusal in these circumstances ap- Deering timely 22(b). Fed.R.App.P. pealed. qualitatively are different from those in undisputed, here, Where, charge DWI, facts are cases where the in which corpus petition police questions a habeas denial an arrestee's answer to Municipali- provide Burnett de novo. reviewed could at most inferrential evidence 1447, 1449 F.2d charge. Anchorage, ty as to the related Because refusal Cir.1986). criminalized, Deering suggests, po- here, appellantchallenges "implied statute, the statuteon 3. Alaska's consent" AlaskaStat. grounds. 28.35.031,provides oper- fifth amendment § that a who ates a motor vehicle in the state is considered to initiallygranted given to deter- 4. The Alaska have mine the alcoholic content of his blood. See consent to a Deering'spetition certiorari, for a writ of appeal argued. 28.35.031(a) recently rejected § was briefedand Afteroral Alaska Stat. We argument,however, challenge implied the Courtdeterminedthat a fourth amendment consent statute-and its attendant sanctions-in petition improvidentlygranted. was Thus Municipality Anchorage, has exhaustedhis remediesin state Burnett v. 806 F.2d 2254(b). § (9th Cir.1986). court. See28 U.S.C. That case does not control demanding promise either a lice were evidence of was or, perform, in his failure to take the test for the testimonial or communicative con- guilt.” “outright confession of an (e.g., conveyed by tent his act of refusal refusing “I’m because I’m too drunk to contention, although appeal We find this Rather, pass”). it was used to show that blush, ing ultimately unpersuasive. at first performed he had not physical act of That the refusal is itself an element of this actually taking requested. the test when crime, evidence of an merely rather than Because the act of refusal was not used for (as element of the crime it is the case of purposes at trial but rather sim- charge), does not DWI transform the that, indeed, ply convey Deering had not nature of the refusal itself. Alaska’s re requested, taken the test when there was closely analogous fusal statute is crim no fifth amendment violation. See Estelle contempt penalty violating inal a court Smith, produce order to nontestimonial evidence. (1981); facing United States Just as defendant a court order to Dionisio, v. produce 1, 7, nontestimonial evidence has no 410 U.S. 93 S.Ct. order, constitutional (1973). refuse the 35 L.Ed.2d 67 Braughton, re 765, 520 F.2d Cir. 1975) (request for handwriting exemplar), B. Was “com- refusal Deering so had no to refuse the pelled”? request test. Burnett for a Even were we to find re Municipality Anchorage, 806 F.2d respects fusal to inbe some “testimonial” 1447, (9th Cir.1986). just And as the respect charge refusal, with to the we imposition of criminal contempt penalties nonetheless conclude that it was not “com does not transform the obey refusal pelled” purposes of fifth amendment regarding court order nontestimonial evi analysis. In Neville the Court relied on dence into a testimonial communication finding two related in factors that the state respect contempt charge, “compel” did not the defendant to incrimi Hammond, United 166, States 419 F.2d gave nate himself when it him a choice (4th Cir.1969) (court appear order to submitting between to a blood-alcohol test lineup wearing goatee, backed criminal having or the refusal used him in contempt charge, does not violate fifth First, court.5 the Court noted that the denied, amendment), cert. 1068, 397 U.S. state legitimately compel suspect could 1508, (1970), 25 L.Ed.2d 690 nei take a blood-alcohol test the sus ther imposition by does the the State of Neville, pect’s 563, will. 459 U.S. at Alaska of a criminal for refusal to 922; See also Schmerber S.Ct. at

provide physical the state with the evidence at at S.Ct. 1830-33. The of a beyond the civil test — Court then concluded that the offer of tak penalty of license revocation clearly con ing a blood-alcohol test “becomes no less doned in qualitatively transform Neville — legitimate when the State offers a second the testimony. refusal into option refusing test, the with the attend acknowledge We that some refusals are penalties making ant that choice.” Ne by nature more “testimonial” than others. ville, 459 U.S. at 103 S.Ct. at 922 Neville, 103 S.Ct. at Cf. (emphasis original). 921-22 (implying that a nonverbal refusal can be by Deering considered less The choice “testimonial” than a faced was identi- Neville, verbal refusal combined with a cal to the choice statement treated in with the refusal). of the reason for the exception Deering As the notable faced crimi- case of obey a failure to charges a court order in nal for his sug- refusal. order to contempt charge, that, a criminal gests criminalized, where refusal Many punish 5. Neville, states the suspension to take process. revocation or breathalyzer by suspending the 916; defendant's driv- Mackey Montrym, ing privileges. practice upheld This has been if provides adequate process during the state impermissibly coercive is no illusory, choice state by the offered the choice produce physical evi- submitting to order than he faced either because incriminating thereby is backed with sanction which dence statute, or of DWI Alaska’s the Court noted contempt. under As himself incriminating test, and Neville, refusing to take or refuse choice to submit “the Alaska’s himself under easy an not be will take a blood-alcohol statute. But suspect to make. pleasant or one requires sus- stated often that, the criminal

It is true does make presence of choice difficult mere and defendants pects Id. issue. compulsion 103 S.Ct. at always settle at choices.” legitimacy 562-63,103 922-23. on coercive- depends largely choice important, we note that Equally alternatives; certain proffered ness of in Neville placed great analysis Court’s highly choices,” made and choices “cruel state fact that did weight on the circumstances, proscribed are coercive Rather, compel a directly refusal. state, though the even amendment the fifth suspects to noted, the state wants compel an in- does not speaking, strictly Id. the blood-alcohol Jersey v. See New criminating statement. People v. also 922-23. 450, 459, 99 S.Ct. Portash, Cal.Rptr. Ellis, 65 Cal.2d (1979) (proscribing (Cal.1966) (Traynor, 421 P.2d facing con- testifying between choice (refusal identification C.J.) to take voice U.S. at charges); tempt may n, guilty party rape case: (fifth in amend- “[a] n. 9 at 1833 in situation himself a testimony obtained not to find prefer of may bar use ment may sub- in- guilt to alternative proffered where consciousness the was when person al- conduct, scarcely that painful so a it can a test mit but ferred confession); prefer inevitably would evi- police, most who seek that the be contended 436, 458, 86 Arizona, 384 U.S. Miranda itself, will tend the test dence from (1966) (un- L.Ed.2d 694 S.Ct. refusing to take tests parties into coerce sur- in custodial inherent less coercion evidence”) (footnote produce this order to is tru- dispelled, no statement roundings is omitted). choice); Murphy v. ly free product a equally per- find this observation We Commission, Waterfront fact, penalty criminal In a here. suasive 12 L.Ed.2d refusal less arguably compels a for refusal self-ac- choice between (1964) (proscribing Neville present penalty the civil than and testimony, cusation, false perjury for of a criminal imposition Although the did. testify). declining to contempt for an inherent- may for refusal create penalty the acknowledge that Although we imposition than situation ly more coercive coercive appears more in this case choice behavior, the for the penalty same of a civil Neville, con- nonetheless we than that compulsion to the increases is compulsion it analysis in Supreme Court’s that the clude test, the submit equally controlling, applies is that case the refuse, is compulsion and despite criminal the Deering’s choice Be- statute. in the conduct made Where, as upon it. penalties attendant attendant increasing cause Deerings’ here, have taken state could likelihood only reduces upon refusal “compel” a force,6 does by it blood 560, Neville, refusal, cf. when testify himself defendant of refusal (allowing use 920-21 S.Ct. at producing of either him the choice it allows refusal), Deer- discourages choice of trial charges— facing criminal the evidence “compelled” less was even ing’s refusal prison mandatory sentence a and even in Neville. the refusal withholding a than Such days it. three —for See, footnote above. 407-08, 100 short, 2180, 2181-82, Deering’s refusal in this case S.Ct. (1980); Ohio, compelled. Doyle nor see also was neither 610, 617-19, 2240, 2244-45, held in that “a refusal to S.Ct. Neville (1976); Miranda, take a after a offi- U.S. at blood-alcohol it, 468 n. 1624-25 n. 37. Deer- lawfully requested cer has is not an act ing suggests admitting that officer, evidence of his coerced and thus is not silent refusal to submit to protected by privilege self-in- equivalent admitting test was shows, evidence As our discussion crimination.” occurring of silence in the course imposi- that conclusion is not altered post-arrest interrogation; we construe his penalties upon tion choice arguments as a due claim. analysis proferred refusal. Neville here, controlling fifth Again, in Neville the Court has challenge amendment must therefore fail. held that introduction at a trial for DWI of breathalyz defendant’s refusal to take a II. Was Refusal Admitted in Vi- process. er test did not violate due Ne olation of Miranda? ville, 459 U.S. at 564-66, 103 S.Ct. at 923-24. The Court interrogation Because custodial reasoned that evidence coercive, prosecution of such a refusal is inherently may admissible because a during legitimate expectation defendant has no not use statements made the course interrogation” the refusal will not be a “custodial unless it court. Again, Id. at demonstrates that the defendant was 923-24. ad reasoning Court’s vised to remain silent and the unaltered and counsel, equally applicable and that when the refusal is intro defendant voluntarily rights. duced at a trial for those refusal to take a breath waived Miranda Arizona, alyzer presume It 384 U.S. 436 at is fanciful to expectation there some 1602 at arises new Ne defendant analysis ville indicates that the that his refusal will not be used supplements court because it “basic” fifth amendment be used to analysis separate different conduct discussed above. under statute. U.S. at 564 n. 103 S.Ct. at 923 n. 15. Furthermore, the fact that re- Deering argues by speech fused silence rather that his refusal was used than is of legal consequence. in court to no intent to refuse to take See 459 breathalyzer test, and that U.S. 103 S.Ct. at therefore it 921-22. It is abundantly Deering’s should have clear that been excluded as evidence ob- was silence case; not, tained a refusal in this he violation of did after all Mi- done, is randa. The short said and answer to this a test. simply His supplementary to note that the failure to do so is not rendered protections legitimate by cloaking of apply do not it in Miranda to the due evidence, process protections traditionally nontestimonial which we have de- afforded a Deering’s termined defendant’s to silence. be. See 384 U.S. at CONCLUSION 1831-32; see also Misterly, Newhouse v. (9th Cir.1969) 415 F.2d 518 (discussing reasons, For all of the above the district Schmerber). Miranda and court’s corpus denial of habeas petition is AFFIRMED. III. Did Admission of Silent Re- fusal FERGUSON, Violate Due Process? Judge, Circuit dissenting: prohibits

The due clause “use a criminal defendant of si The crucial issue this case is whether a lence receipt maintained after govern of state use an individual’ssilence follow- ment assurances” such as ing Miranda warn right advisement of the constitutional ings. Charles, Anderson v. to remain silent as evidence to establish

545 privi- Fifth Amendment his/her exercise this majority avoids The conduct. Palmigiano, Id.; also v. see Baxter lege. evidence as whether issue posing the 47 may constitu- U.S. refusal” Deering’s “silent (in (1976) criminal cases support L.Ed.2d used tionally be may not be treated to a breatha- silence refusing to submit defendant’s charge of guilt”); Malloy by statute. evidence required lyzer “substantive 1, 8, 84 S.Ct. Hogan, v. 1) opinion majority I because dissent (“The L.Ed.2d [Con- exercising the an individual penalizes right of a ... secures stitution] 2) silent, and right to remain constitutional speak he chooses to unless to remain silent of “nontestimo- use the testimonial allows of his will exercise own in the unfettered in violation Miranda evidence, nial” si- for such no ... to suffer 1602, 16 436, 86 S.Ct. Arizona, lence.”). (1966).1 Misterly, 415 F.2d In Newhouse I. denied, cert. Cir.1969), Deer- informed twice police officers The (1970), this time rights, each ing his Miranda that court stated he submit that request followed with statutory] underlying where an [state he On each occasion a blood test right to refuse ... used silence was this silent and remained improper draw present, it would him at trial. failure of inferences adverse recognizing majority is correct for a request respond to a accused Deering’s silence using is not that Alaska the accused test because blood having the stat- of his as evidence exercising his penalized for thereby be However, driving. drunk prohibiting ute the test. rights refuse Deering’s silence using the state Cali- Schmerber (interpreting Id. stat- different criminal prove violation 765 n. fornia, promise clearly This contravenes ute. (1966)). In this warning implicit in the standard im- situation case we address silent” right to remain have “you conclu- drawing adverse propriety say can and will be you “anything because than compelling much more guilt is sion of Mi- generally against you.” Newhouse referred the situation randa, right statutory contemplated a which silence your warning’s guarantee being guilt refusal; are confronted we your constitu- kept in exercise —when of a constitution- the exercise inferred from not be silent —will to remain tional remain silent. al con- against you to establish decision, re- majority the support its To 37, at 86 S.Ct. id. at 468 n. duct. Neville, Dakota South upon heavily per- lies is not prosecution n. 37. 1624-25 916, 748 553, 459 U.S. that an the at trial fact to use mitted misplaced because (1983).2 reliance This is right to the or claimed stood mute accused Further, Cir.1986). 1447, I am 1450 right F.2d to crimi- challenging Alaska’s 1. I am testi- arguing itself becomes that the refusal the blood refusal to take an individual’s nalize refusals penalties for such criminalized. Civil monial when alcohol have al. constitution- specifically been found to be reso- since need not addressed These issues Neville, See, 459 U.S. e.g., Dakota South si- threshold lution of the —whether 916, 748 L.Ed.2d S.Ct. 74 warning post-Miranda context a lence the (revocation "for re- (1983) of driver’s license requi- establishing the as evidence can be used unquestion- fusing a to take blood-alcohol disposes case. of the site refusal — procedur- assuming appropriate legitimate, ably wheth- examined the In Neville saying I that protections.”) amNor al at trial into evidence er the admission right to take the to refuse has a statutorily required to a defendant's specifically that court determined test. This has right Amendment Fifth blood test stat- Alaska such a under the is not there another against Anchorage, self-incrimination Municipality Burnett v. utes. Neville inapposite (1981) case at bar in (“Any L.Ed.2d 359 effort First, Neville involved the use ways. two compel State respondent to testify an affirmative statement a against his sentencing will at the hearing criminally Second, sanctioned refusal. clearly would contravene the Fifth Amend- issue was as- ment.”). affirmative statement at sumed perform constitute a a “The Fifth and the Fourteenth Amend statutorily contrast, required act. this provide ments that no ‘shall be com presents whether case the issue of an indi- pelled in any criminal case to abe witness silence, following vidual’s a warn- ” against himself.’ Jersey Portash, New ing, establish, can be used to alone let itself 450, 459, 1297, 59 constitute, criminally a sanctioned refusal. (1979). Moreover, “any crimi I hold constitutionally that it cannot nal trial use a defendant of his

be so used. involuntary statement is a denial of due process of Arizona, law —” Mincey v. II. S.Ct. majority also holds that (emphasis original). perform “refusal” to test is Smith, Thus Estelle v. 454, 101 not transformed into testimonial evidence3 S.Ct. (1981), the Su simply because it is criminalized. But see preme Court “[a]ny declared that effort” Schmerber, 765 n. 86 S.Ct. at by a state compel an individual “to testi (“This 1833 n. 9. conclusion the re [that fy against his will at sentencing hearing [a] sults of a test are not testimo clearly would contravene the Fifth Amend necessarily govern would not had the nial] Id. ment.” (foot 101 S.Ct. at 1873 state tried to show that the accused had omitted). note Allowing Alaska to use the incriminated himself when that he told exercise of an individual’s constitutional tested.”) would have to be Here major proof remain silent as guilt ity has avoided the crux of issue. Our means that a may State force an individual inquiry should not focus on the testimonial to involuntarily testify against him/herself quality refusal, but on whether the equivalent thus is authorizing exercise of a constitutional right to remain proscribed by conduct the Court in Estelle. testimony silent becomes when used as evi The majority, criminally dence while “acknowledgpng] sanctioned refusal. I that would hold that the choice this appears use of case silence to estab Neville,” lish a refusal coercive than inherently testimonial, nonetheless relies on support holding U.S. at 761 n. the case to its (“A 1830 n. 5. nod or head-shake is “refusal” was not com- pelled. is, however, much ‘testimonial’ or paramount ‘communicative’ act There spoken words.”), as are ... when difference the refus between “difficult choices” sought al to be established is itself criminal referred to in conduct. This is because (“the silence is often requires individual’s suspects will—as an and defendants to make used — Smith, guilt. admission of Estelle v. choices”), difficult and the catch-22 Cf. presented light Alaska statutes evidence, state’s statutes authorized revocation of an indi- discover forgo the State have to vidual’s driver’s license if refused to s/he sub- advantage products Holding to the mit use administering products which would test— did not violate the defendant’s Fifth Amend- Schmerber, privilege.” fall within the right, specifically ment the Court noted Neville’s at 765 n. (emphasis 86 S.Ct. at 1833 n. 9 response being after twice asked to take the original). majority properly notes that un- responded blood alcohol test. Neville had each der compelled evidence that is and drunk, stating: time pass “I’m too I won’t "testimonial" or "communicative" in nature falls test.” U.S. at 103 S.Ct. at 918. clearly scope protected within exercise of privilege. the Fifth Amendment Supreme 3. The Court has said it “[i]f wishes compel persons attempts to submit to ... faced opinion. The situation majority’s submit STATE ELECTRICAL WASHINGTON —to INC., ASSOCIATION, establish violation could test which CONTRACTORS al., the exercise driving or have Washington corporation, statute et Plain- drunk remain silent tiffs-Appellants, constitutional his stat of another prove violation be used of Neville4 beyond the bounds goes ute — Johnson, FORREST, Mac Harold Frank analogous closely is more and Wilson, Mason, Wilson, Lloyd Charles Supreme proscribed “choices” Hutchins, Washing- David State G. See, e.g., New precedent. in other relevant ton, Washington, Depart- and State Portash, 440 U.S. at Jersey v. Industries, & Defend- ment of Labor (“constitutional privilege at 1297 ants-Appellees. compulsory self-incrimination” he “talk was told could witness No. 85-4232. sanctions, government’s coercive face Appeals, United States Court Mur contempt”); notably, conviction Ninth Circuit. New York phy v. Comm’n of Waterfront Harbor, Sept. Argued Submitted 1987. and (one jurisdiction 1608, 12 L.Ed.2d 678 8, 1988. Decided Feb. could be compel “testimony which in another him of crime to convict Schmerber, jurisdiction”); (choice at 1833 n. n. dangerous painful, confession

between likely be uncon operation would

or severe coercive).

stitutional

III. effectively criminal majority opinion right to of a constitutional

izes the exercise Deering’s silence by equating silent

remain itself. Constitu criminal refusal

with the individ nullified privileges are when

tional I exercising them. penalized for are

uals “whip be allow a defendant

would himself”, Knapp incriminating sawed into Schweitzer, J., (1958) (Black,

1302, 1310, 2 L.Ed.2d 1393 type of

dissenting), such is the since Fifth Amendment

government coercion the prevent. I reverse

was intended grant petition court and

the district corpus.

a writ habeas beyond jority goes standard set forth said that Miranda, inherently adequate protective em- are what could be devices "[u]nless compulsion dispel violating inherent ployed one between the choice coercive than surroundings, obtained no statement law, custodial will conclu- providing evidence which truly product defendant can has been violat- sively whether another establish 458, 86 S.Ct. at choice.” 384 U.S. at free ed? By equating the ma- silence

Case Details

Case Name: Larry Deering v. Harold M. Brown, Attorney General of the State of Alaska

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Feb 4, 1988

Citation: 839 F.2d 539

Docket Number: 86-3548

Court Abbreviation: 9th Cir.