Both defendants appeal from jury trial convictions in Grand Traverse County District Court. Their appeals have been consolidated.
Defendant Hayes was arrested on January 31, 1973, and convicted on June 6, 1973, of driving *205 under the influence of liquor, MCLA 257.625; MSA 9.2325. He was sentenced to a term of 30 days in jail. Defendant Allen was arrested on February 2, 1973, and convicted on June 20, 1973, of the lesser included offense of driving while impaired, MCLA 257.625b; MSA 9.2325(2). He was also sentenced to a term of 30 days in jail.
In June, 1973, both defendants appealed their convictions to the Grand Traverse County Circuit Court. The court affirmed both convictions. Both defendants subsequently filed applications for leave to appeal which we granted on September 10, 1974.
At each trial, the prosecutor elicited testimony from the arresting officer on direct examination that, at the time each defendant was arrested, he was advised that he had a right to have a chemical test conducted to determine the percentage of alcohol in his blood and that, if he did not take the test, his license would be revoked. In each case, the arresting officer further testified that, having been so advised, the defendant refused to submit to, in this case, a Breathalyzer test. In both cases, defense counsel made timely objection to the admission of testimony describing defendants’ refusal to submit to the test, and, in both cases, the trial court overruled the objection.
The sole issue on appeal is whether the admission, over defense objection, of the defendants’ refusal of a Breathalyzer test was erroneous and requires reversal of the defendants’ convictions. Our determination of this issue initially requires an examination of the recent history of the statute which governs the administration of chemical tests to determine the presence and amount of alcohol, § 625a of the Michigan vehicle code,
*206 "(4) The person charged shall be advised of his right to refuse to take any test provided for in this act and the refusal on the part of any person to submit to any such test shall not be admissible in any criminal prosecution relating to driving a vehicle while under the influence of intoxicating liquor.”
In 1967, this section was amended,
"(4) The person charged shall be advised that his refusal to take a test as herein provided shall result in the suspension or revocation of his operator’s or chauffeur’s license or his operating privilege.”
Thus, the 1967 amendment deleted that portion applicable to admission of a defendant’s refusal to submit to a test and substituted a penalty for this refusal.
In
People v Reeder,
Although a matter of first impression here, the issue of admitting into evidence a defendant’s refusal to take a chemical test has been the subject of widely varying decisions in a number of sister jurisdictions. The divergent positions enunciated in those decisions are well-represented in the arguments of the parties here. These positions fall into two broad categories: (1) constitutional assertions and (2) statutory interpretation.
Defendants’ constitutional assertion is that the admission into evidence of their refusal to take Breathalyzer tests violated the privilege against
*207
self-incrimination guaranteed by the United States and Michigan Constitutions. US Const, Am V, Const 1963, art 1, § 17. Sister-state decisions on this claim have been founded on different applications of
Schmerber v California,
Notwithstanding the
Gebarowski
holding, we
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find that this case is appropriate for application of the well-established doctrine favoring a nonconstitutional determination of cases.
Brown v Hill,
Plaintiff argues that, by removing the provision which prohibited introduction of evidence detailing a defendant’s refusal to submit to a test, the 1967 amendment to § 625a made such evidence admissible. We would find this argument more cogent if the Legislature had not substituted a penalty for the deleted provision. We believe that the Legislature thereby specified license revocation as the consequence for refusing to take an intoxication test. Such consequences should be specifically stated. We cannot find the admission of a defendant’s refusal to be an added consequence in the absence of a definitive legislative provision to that effect.
Further, and more importantly, the admission of a defendant’s refusal to submit to an intoxication test would render nugatory the choice which the statute provides him. Under § 625a, an individual arrested for drunk driving has a choice. He can either submit to a test the results of which could create a virtually irrefutable presumption of guilt against him, or he can refuse the test and suffer the revocation. If the fact that a defendant has chosen not to submit to a test can be placed before the jury as an inference of his guilt, then he will be put in the position of having to risk providing evidence for the prosecution by submitting to the
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test or of certainly providing it by refusing to submit. It would be fundamentally unfair to put a defendant in such a "damned if he does, damned if he doesn’t” position. The Legislature provided a definite choice, and we cannot render a decision which would make that choice an illusory one. See
e.g. State v Ingram,
67 NJ Super 21;
In deciding to admit such evidence, the Supreme Court of Idaho distinguished between rights under statutes which prevent intoxication tests without the driver’s consent and those, like ours, which provide implied consent and require express refusal.
State v Bock,
In addition, we find no evidentiary basis for the admission of a defendant’s refusal. As have courts in other jurisdictions, we find the probative value of such evidence to be too low in comparison to its prejudicial effect. See
Duckworth v State,
The inadmissibility of a defendant’s refusal to be tested is further supported by analogy to those cases dealing with the admissibility, under the admission exception to the hearsay rule, of silence in the face of an accusation. In both cases, the refusal of a defendant to speak or take action to assert his innocence is offered as an inference of a guilty mind. A defendant’s silence i@ admissible only when the circumstances call for a denial, where there is no justification for failing to respond.
People v DeBolt,
Finally, we cannot conclude, as plaintiff contends, that the inadmissibility of a defendant’s refusal to submit to an intoxication test will do violence to the laws proscribing drunk driving. Plaintiff claims that, without such evidence, it will be unable to prove a defendant’s guilt. Plaintiff has, however, provided no showing that it could
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not obtain convictions prior to 1967 when the statute specifically excluded this evidence. A prosecutor can still show that a defendant was driving carelessly, smelled of alcohol, had bloodshot eyes, and walked unsteadily. The essential purpose of the law, to keep intoxicated drivers off the highways,
Collins v Secretary of State,
As to both defendants, reversed and remanded for new trial consistent with this opinion.
Notes
State v Meints,
189 Neb 264;