STATE оf North Dakota, Plaintiff and Appellee, v. Daniel Lucian BEATON, Defendant and Appellant.
Cr. No. 930322.
Supreme Court of North Dakota.
May 19, 1994.
516 N.W.2d 645
Robin L. Olson, Nelson Law Office, Fargo, for defendant and appellant.
VANDE WALLE, Chief Justice.
Daniel Lucian Beaton appealed from a judgment of conviction entered upon a jury verdict finding him guilty of being in actual physical control of а motor vehicle while under the influence of intoxicating liquor.1 We conclude that Beaton‘s statements refusing to submit to a chemical test to determine his blood alcohol content should not have been admitted into evidence. We reverse the judgment and remand for a new trial.
On April 20, 1993, Trooper Ronald Duane Stanley, North Dakota Highway Patrol, was dispatched to a location on Cass County Road 26, near Gardner, North Dakota. When Stanley arrived at the location, he observed a vehicle parked “two-thirds of the way onto the roadway just before a bridge that goes into Minnesota.” There was a beer can outside the driver‘s door. Stanley “walked up to the vehicle, removed the key from the ignition, picked up the can, took those bаck” to his car and awakened Beaton, who was sleeping in the driver‘s seat. When he awakened Beaton, Stanley could smell the odor of alcohol on Beaton‘s breath and observed that Beaton‘s “eyes were red, watery, and bloodshot.”
Stanley had Beaton perform field sobriety tests and arrested him for actual physical control. Beaton was handcuffed аnd placed in the back seat of the patrol car. Another officer drove Beaton‘s car to Beaton‘s home in Perley, Minnesota. Stanley read to Beaton an implied consent advisory.2 Stanley did not advise Beaton that a refusal to take a chemical test to determine his blood alcohol level would be used against him at trial and did not give Beaton a Miranda3 warning. Beaton refused to submit to a test.
Beaton moved to suppress his statements refusing to take a chemical test and to dismiss the case. The trial court denied the motion. A jury trial resulted in a conviction. Beaton appealed, contending that his seizure
An officer has reasonable grounds or probable cause to arrest if the facts and circumstances within the officer‘s knowledge ““are sufficient to warrant a man of reasonable caution in believing that an offense has been or is being committed.“” Moser v. North Dakota State Highway Comm‘r, 369 N.W.2d 650, 652-53 (N.D.1985), quoting Witte v. Hjelle, 234 N.W.2d 16, 18 Syllabus 13 (N.D.1975). Here, the facts and circumstances encountered in Stanley‘s investigative and caretaking encounter with Beaton led to further knowledge, which ultimately provided Stanley with probable cause to arrest Beaton for actual physical control. See, e.g., State v. Langseth, 492 N.W.2d 298 (N.D. 1992); Wolf v. North Dakota Highway Comm‘r, 458 N.W.2d 327 (N.D.1990); Wibben v. North Dakota State Highway Comm‘r, 413 N.W.2d 329 (N.D.1987).
Section
“If the person under arrest refuses to submit to the test or tests, proof of refusal is admissible in any civil or criminal action or proceeding arising out of acts alleged to have been committed while the person was driving or in actual physical control of a vehicle upon the public highways while under the influence of intoxicating liquor, drugs, or a combination thereof.” (Emphasis added.)
The
Beaton unsuccessfully sought to have his statements of refusal to submit to a blood test suppressed. At the hearing on Beaton‘s motion to suppress, Stanley testified about Beaton‘s refusal:
“Q. Did you ask him to submit to a blood drawing at that point?
“A. Several times through the trip I had asked him to submit to a blood sample.
“Q. Did you actually go to the hospital?
“A. Yes, I did.
“Q. When you were at the hospital did you ask him again?
“A. Yes, I did.
“Q. And how did he respond?
“A. I‘d asked him if he would consent to a blood test and he said, ‘No.’ And I told him that that would be going down as a refusal and he said that he understood that. He also said that I had been very fair. And I said, ‘Okay, then we‘ll go from here to Cass County.‘”
At Beaton‘s jury trial, Stanley testified about Beaton‘s refusal:
“Q. Did Mr. Beaton agree to take a test?
“A. No, he said he didn‘t want to take it. I said we have got thirty minutes to get back into Fargo. He can think on it on his way in and we can make another decision once we get back to Fargo.
“Q. Did you then go back to Fargo?
“A. Yes, we did.
“Q. Did you ask him again on your way back to Fargo whether or not he would submit to a chemical test?
“A. I asked him en route to Fargo when we were probably still 25 miles out and аgain when we were at the hospital at the ER room when he was still in my car.
“Q. What was his response?
“A. The third time I asked him I said, ‘would you consider taking the test?’ And he said, ‘No.’ And I said, ‘Well, it will go down as a refusal.’ And he said, ‘Well,
you‘ve been very fair. I do not want to take the test.’ And I said, ‘Okay. It will go down as a refusal then.‘”
Beaton contends that, by using his statements of refusal as evidence against him, the prosecution deprived him of the privilegе against self-incrimination afforded him by
“The privilege guaranteed by this constitutional provision relates to the personal liberty of the citizen, and it is now a generally accepted principle that such constitutional provisions should be liberally construed and given full force, or the intent thereof will be unavailing.”
To secure the privilege against self-incrimination afforded by
In Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694, 706-07 (1966), the United States Supreme Court held that a defendant‘s statements during custodial interrоgation were inadmissible in criminal proceedings unless procedural safeguards had been employed to secure the privilege against self-incrimination afforded by the
“[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effеctive to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.”
The court observed that, “[u]nless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice.” Id., 384 U.S. at 458, 86 S.Ct. at 1619. The court recognized a fundamental tenet that punishment ought to rest on proof, rather than the power to сompel: “[O]ur accusatory system of criminal justice demands that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from his own mouth.” Id., at 460, 86 S.Ct. at 1620.
The reach of the privilege against self-incrimination was further explained in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), which was decided one week after Miranda. Armando Schmerber was arrested for driving while under the influence оf intoxicating liquor. Despite Schmerber‘s refusal to consent to a test, a blood sample was drawn from his body at the direction of a police officer. The test result was admitted into evidence and Schmerber was convicted. The court held that the
The United States Supreme Court further explained what constitutes evidence of a testimonial or communicative nature in Pennsylvania v. Muniz, 496 U.S. 582, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990), where Muniz was given field sobriety tests, videotaped, asked if he knew the date of his sixth birthday and other questions, arrested, and booked for driving while intoxicated before he wаs given a Miranda warning. Quoting Doe v. United States, 487 U.S. 201, 210, 108 S.Ct. 2341, 2347, 101 L.Ed.2d 184, 197 (1988), the court said: “[I]n order to be testimonial, an accused‘s communication must itself, explicitly or implicitly, relate a factual assertion or disclose information.” Muniz, 496 U.S. at 589, 110 S.Ct. at 2643. The court held that Muniz‘s response to the sixth birthday question was testimonial and should have been suppressed:
496 U.S. at 598-99, 110 S.Ct. at 2649.“In contrast, the sixth birthday question in this case required a testimonial response. When Officer Hosterman asked Muniz if he knew the date of his sixth birthday and Muniz, for whatever reason, could not remember or calculate that date, he was confronted with the trilemma. By hypothesis, the inherently coercive environment created by the custodial interrogation precluded the option of remaining silent, see n. 10, supra. Muniz was left with the choice of incriminating himself by admitting that he did not then know the date of his sixth birthday, or answering untruthfully by reporting a date that he did not then believe to be accurate (an incorrect guess would be incriminating as well as untruthful). The content of his truthful answer supported an inference that his mental faculties were impaired, because his assertion (he did not know the date of his sixth birthday) was different from the assertion (he knew the date was [correct date]) that the trier of fact might reasonably have expected a lucid person to provide. Hence, the incriminating inference of impaired mental faculties stemmed, not just from the fact that Muniz slurred his response, but also from a testimonial aspect of that response.”
Beaton was arrested, handcuffed, and placed in the back seat of a patrol car. There is no doubt, therefore, that Beaton was in custody when he was asked if he would consent to a blood test. Beaton was not given a Miranda warning or afforded any other procedural safeguards to secure the privilege against self-incrimination afforded him by
While Stanley and Beaton were in Minnesota as Beaton‘s car was being driven to his home in Minnesota, Stanley asked Beaton if he would submit to a blood test. Beaton contends that “Stanley laсked jurisdiction to request the chemical test” in Minnesota. Stanley also requested Beaton to consent to a blood test while they were in North Dakota. The argument is without merit.
Because we have held that Beaton‘s statements of refusal to submit to a blood test were inadmissible, we need not address Beaton‘s argument that the statements should have been excluded as prejudiсial under Rule 403, N.D.R.Ev. As to the fact of refusal, as distinguished from statements of refusal, we are not persuaded that a balancing, under Rule 403, N.D.R.Ev., of the probative value of the evidence against the risk of unfair prejudice is appropriate. The Legislature has the power to make evidence admissible. State v. Fischer, 459 N.W.2d 818 (N.D.1990). The Legislature has made the fact of refusal admissible in evidence. Seсtion
The judgment is reversed and the matter is remanded for a new trial.
SANDSTROM, NEUMANN and MESCHKE, JJ., concur.
LEVINE, Justice, dissenting.
Resolution of the issue here does not rest on federal or state constitutional grounds; rather, it depends upon whether a police officer‘s inquiry whether a suspect will submit to a blood test is interrogation triggering the application of Miranda. Because I would answer that question in the negative, I dissent.
In South Dakota v. Neville, 459 U.S. 553, 564, 103 S.Ct. 916, 922-23, 74 L.Ed.2d 748 (1983), the Supreme Court held “that a refusal to take a blood-alcohol test, after a police officer has lawfully requested it, is not an act coerced by the officer, and thus is not protected by the privilege against self-incrimination.” The Court also noted,
“In the context of an arrest for driving while intoxicated, a police inquiry of whether the suspect will take a blood-alcohol test is not аn interrogation within the meaning of Miranda. As we stated in Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297 (1980), police words or actions ‘normally attendant to arrest and custody’ do not constitute interrogation. The police inquiry here is highly regulated by state law, and is presented in virtually the same words to all suspects. It is similar to a police request to submit to fingerprinting or photography. Respondent‘s choice of refusal thus enjoys no prophylactic Miranda protection outside the basic Fifth Amendment protection.” Id. at 564 n. 15, 103 S.Ct. at 923 n. 15.
In Pennsylvania v. Muniz, 496 U.S. 582, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990), the Court addressed directly the issue of whether a defendant‘s statements, made when asked to submit to a breathalyzer test, must be suppressed in the absence of Miranda warnings. The Court stated:
“We believe that Muniz‘s statements were not prompted by an interrogation within the meaning of Miranda, and therefore the absence of Miranda warnings does not require suppression of these statements at trial.... Officer Deyo carefully limited her role to providing Muniz with relevant information about the breathalyzer test and the Implied Consent
Law. She questioned Muniz only as to whether he understood her instructions and wished to submit to the test. These limited and focused inquiries were necessarily ‘attendant to’ the legitimate police procedure, see Neville, supra [459 U.S.], at 564, n. 15 [103 S.Ct. at 923 n. 15], and were not likely to be perceived as calling for any incriminating response.” Id. 496 U.S. at 605, 110 S.Ct. at 2652 (footnotes and citation omitted).
I see no difference between this case and Pennsylvania v. Muniz. The testimonial or communicative nature of Beaton‘s statements is irrelevant, for purposes of Miranda, if the statements were not elicited in response to custodial interrogation. While there may be no doubt that Beaton was in custody, see ante at 649, the trooper‘s inquiry whether Beaton would submit to a blood-alcohol test is not interrogation under Neville and Muniz.
For these reasons, I would not hold Beaton‘s statements of refusal inadmissible.
Notes
“1. A person may not drive or be in actual physical control of any vehicle upon a highway in this state if any of the following apply:
“a. That person has an alcohol concentration of at least ten one-hundredths of one percent by weight at the time of the performance of a chemical test within two hours after the driving or being in actual physical control of a vehicle.
“b. That person is under the influence of intoxicating liquor.”
“Any person who operates a motor vehicle on a highway ... in this state is deemed to have given consent, and shall consent, subject to the provisions of this chapter, to a chemical test, or tests, of the blood, breath, saliva, or urine for the purpose of determining the alcoholic ... content of the blood.... The test or tests must be administered at the direction of a law enforcement officer only after placing the person ... under arrest and informing that person that the person is or will be charged with the offense of driving or being in actual physical control of a vehicle upon the public highways while under the influence of intoxicating liquor, ... The law enforcement officer shall also inform the person charged that refusal of the person to submit to the test determined appropriate will result in a revocаtion for up to three years of the person‘s driving privileges. The law enforcement officer shall determine which of the tests is to be used.”