Field Sobriety Test Refusal
In State v. Wyatt, 67 Haw. 293, 687 P.2d 544 (1984), the Hawai'i Supreme Court explained that the fifth amendment and article I, section 10 prohibit the State from compelling "communications" or "testimony" from a defendant.
Deciding that the field sobriety test involves nothing more than an "exhibition of 'physical characteristics of coordination,'" the supreme court held that the State, through the field sobriety test, seeks neither "communications" nor "testimony" from a defendant.
Hence the supreme court concluded that the test, even if compelled, does not run afoul of the constitutional prohibition against compulsory self-incrimination. Id. at 301-03, 687 P.2d at 550-51.
The supreme court also held that the field sobriety test does not infringe a defendant's constitutional right, under the fourth amendment to the United States Constitution and article I, section 7 of the Hawai'i State Constitution, to be secure from unreasonable searches, seizures and invasions of privacy. Id. at 303-06, 687 P.2d at 551-53.
Following Wyatt, we reason that because no right of constitutional dimension is implicated by the field sobriety test, no fundamental right was chilled by the court in weighing Defendant's refusal against him.
As he did in his arguments concerning the right to counsel, Defendant here invites us to depart from authoritative precedent on the strength of holdings from another jurisdiction.
The Com. v. McGrail, 419 Mass. 774, 647 N.E.2d 712 (Mass. 1995) court reached this conclusion by divining that the refusal is in all cases communicative or testimonial -- that in all cases the defendant's refusal will be interpreted as a statement to the effect that, "I have had so much to drink that I know or at least suspect that I am unable to pass the test," and therefore "constitutes testimonial or communicative evidence." 647 N.E.2d at 714.
As stated by the Supreme Court of Washington, to characterize refusal as testimonial "confuses reasonable inferences with communications." City of Seattle v. Stalsbroten, 138 Wn.2d 227, 978 P.2d 1059, 1063 (Wash. 1999).
The McGrail court concluded, further, that the communication or testimony implicated by the defendant's refusal was coerced by the state even though the defendant was not required to perform the field sobriety test. the McGrail court reasoned that the admission of refusal evidence at trial compels a defendant to choose between two equally untenable alternatives:
"take the test and perhaps produce potentially incriminating real evidence; refuse and have adverse testimonial evidence used against him at trial." McGrail, 647 N.E.2d at 714-15.
But see Com. v. Blais, 428 Mass. 294, 701 N.E.2d 314, 318-19 (Mass. 1998) (disapproving any implication that McGrail establishes a constitutional right to refuse to take a field sobriety test, and holding that a person lawfully arrested or detained may be ordered to perform the test).
The United States Supreme Court, in South Dakota v. Neville, 459 U.S. 553, 74 L. Ed. 2d 748, 103 S. Ct. 916 (1983), squarely confronted the fifth amendment on the issue of refusal evidence, in the context of a chemical blood-alcohol test.
The Supreme Court decided that the fifth amendment was not offended by the admission of refusal evidence because in that case, the refusal was not compelled by the state, compulsion being "an ingredient of the right." Id. at 562.
The Supreme Court so held even though it recognized that the resulting dilemma puts a defendant to a difficult and unpleasant choice to give the state potentially incriminating material or to have his refusal produced against him at trial. Id. at 562-64. Cf. Pennsylvania v. Muniz, 496 U.S. 582, 605 n.19, 110 L. Ed. 2d 528, 110 S. Ct. 2638 (1990) (citing Neville, introduction into evidence of criminal defendant's refusal to take breathalyzer test does not compel him to incriminate himself and is thus not derogative of the privilege; "we see no reason to distinguish between chemical blood tests and breathalyzer tests for these purposes").
In the context of refusal evidence, simply put, a hard choice is nor state compulsion. In light of Wyatt and Neville, we discern no viability in a conclusion a la McGrail that the choice Defendant faced in this case, however difficult or unpleasant, amounted to State compulsion.
Whatever the merit of its factual assumptions and conclusions might be as applied to our case, it is fair and worthwhile to note that McGrail was not grounded in the fifth amendment to the United States Constitution. 647 N.E.2d at 714, n.5.
The McGrail court based its holding on article 12 of the Massachusetts Declaration of Rights which provides, in pertinent part:
The significance of the distinction is made plain in the seminal case McGrail followed, Opinion of the Justices to the Senate, 412 Mass. 1201, 591 N.E.2d 1073 (1992), which noted that a majority of jurisdictions, including the United States Supreme Court, hold that refusal evidence is admissible, and do so "under the Fifth Amendment or analogous sections of their respective State Constitutions." 591 N.E.2d at 1074.
In joining a minority of jurisdictions with its contrary holding, the Opinion court expressly staked its ground on article 12, which "adds an additional element not found in most other jurisdictions, " providing that no person shall be compelled to "furnish evidence against himself," id. at 1073-76, and which therefore warrants a more expansive interpretation regarding refusal evidence. Id. at 1077-78. Cf. Stalsbroten, 978 P.2d at 1062-64 (no fifth amendment violation in admitting evidence of a criminal defendant's refusal to take a field sobriety test, as consciousness of guilt, because the refusal is not testimonial evidence and not compelled by the state; this despite the fact that Washington's prohibition against self-incrimination, like the one in Massachusetts, provides that "no person shall be compelled in any criminal case to give evidence against himself").
We again cannot accept Defendant's invitation to depart from authoritative precedent by way of foreign example. We therefore conclude that because Defendant's refusal to take the field sobriety test was neither testimonial nor compelled, the fifth amendment and article I, section 10 were not offended. See Stalsbroten, 978 P.2d at 1062 ("admitting evidence that a defendant refused to take a [field sobriety test] violates his right against self-incrimination only if (1) the refusal evidence is testimonial and (2) the evidence is impermissibly compelled by the State") .
In so concluding, we join the majority of jurisdictions that have considered the issue:
Our conclusion is further bolstered by the fact that the majority of courts that have considered this issue have concluded that the admission of evidence that a defendant refused to perform [a field sobriety test] does not violate the defendant's right against self-incrimination. State v. Taylor, 648 So. 2d 701 (Fla. 1995); State v. Washington, 498 So. 2d 136 (La.Ct.App. 1986); Wright, 116 N.M. 832, 867 P.2d 1214 (1993); Commonwealth V. McConnell, 404 Pa. Super. 439, 591 A.2d 288 (1991); State v. Hoenscheid, 374 N.W.2d 128 (S.D. 1984); Dawkins v. State, 822 S.W.2d 668 (Tex.Ct.App. 1991); Farmer v. Commonwealth, 12 Va. App. 337, 404 S.E.2d 371 (1991); State v. Mallick, 210 Wis. 2d 427, 565 N.W.2d 245 (Ct.App. 1997)