State v. Andrews

Kelly, Justice. Defendant, convicted by a St. Paul municipal court jury of driving while under the influence of an alcoholic beverage, Minn. St. 169.121, appeals from judgment of conviction and from the order denying his motion for a new trial. We reverse and grant defendant a new trial on the ground that the trial court committed prejudicial error in admitting evidence that defendant had refused to submit to chemical testing. In State v. McCarthy, 259 Minn. 24 , 104 N. W. 2d 673 , 87 A. L. R. 2d 360 (1960), which was also a prosecution under § 169.121, we held that the admission of evidence that permitted the jury to infer that defendant had refused to submit to chemical testing constituted prejudicial error. We based that decision in part upon the privilege against compelled self-incrimination and in part upon § 169.121, which makes chemical testing voluntary on the defendant’s part. Schmerber v. California, 384 U. S. 757 , 86 S. Ct. 1826 , 16 L. ed. 2d 908 (1966), relied upon by the state, has not caused us to change our opinion that admission of such evidence violates a defendant’s right not to be compelled in any criminal case to be a witness against himself. U. S. Const. Amend. V; Minn. Const, art. 1, § 7. Schmerber held that the admission of the results of tests conducted on blood samples taken from an accused *262 without his permission did not violate the accused’s right not to be compelled in any criminal case to be a witness against himself. But it does not follow, as the state contends, that since an arrested motorist has no constitutional (as opposed to statutory) right to refuse to submit to chemical testing, he has no constitutional right to have evidence of that refusal excluded from evidence. Indeed, in Schmerber the court emphasized in a footnote that it was not deciding whether admission of evidence of an accused’s refusal to submit to chemical testing would violate any of the accused’s constitutional rights. 384 U. S. 765 , note 9, 86 S. Ct. 1833 , 16 L. ed. 2d 916. The argument for holding that admission of evidence of refusal in this context does violate a defendant’s constitutional rights is well stated in Note, 78 Yale L. J. 1074, 1084: “* * * Evidence of a suspect’s refusal * * * is relevant to the crime charged only in its testimonial aspect, as the approximate equivalent of the statement, ‘Because I fear that the examination will produce evidence of my guilt, I refuse to permit it.’ Therefore, the privilege against self-incrimination seems relevant. There remains the question of whether such testimonial evidence is ‘compelled’ for purposes of applying the fifth amendment standard. In one sense the testimonial action is obviously not compelled — the state is not ordering the suspect to refuse cooperation. But the state does compel a suspect to choose between submitting to a perhaps unpleasant examination and producing testimonial evidence against himself. The suspect’s option to submit to a lawfully imposed burden instead of implicitly testifying against himself does not necessarily save the procedure: lifting a lawful burden — the examination — is in effect an inducement that casts doubt on the ‘voluntariness’ of the testimonial evidence thereby obtained.” In short, we are not convinced that we erred when we held in McCarthy that admission of such evidence in a prosecution under *263 § 169.121 violated an accused’s right not to be compelled in a criminal case to be a witness against himself. 1 This court has not specifically adopted any rule regarding the admissibility of this evidence under its inherent rule-making power and, as we have done in many instances, might be inclined to follow the expressed intent of the legislature as a matter of comity. Thus, a discussion of the intent of the legislature would seem to be in order. We are not convinced, as the state is, that since our decision in McCarthy the legislature has clearly expressed its intent that such evidence be admissible. At the time of our decision, § 169.121 contained no provision specifying whether such evidence was admissible. Then in 1961, following the McCarthy decision, *264 the legislature amended § 169.121, subd. 2, adding the following provision — “but the refusal to permit the taking of specimens for such chemical analysis shall not be admissible in evidence.” L. 1961, c. 454, § 9. By L. 1971, c. 893, § 2, the legislature deleted this provision from § 169.121, subd. 2. The legislature’s intent in deleting this provision is difficult to ascertain. On the one hand, arguably the legislature intended to remove any statutory barrier to the admission of such evidence. On the other hand, the statute as it now reads is no different with respect to admission of such evidence than it was when interpreted in McCarthy, and a defendant still has the right to refuse to take any tests. In short, we are unconvinced by the state’s arguments that the statute permits admission of such evidence in prosecutions for driving under the influence and that the admission of such evidence does not violate a defendant’s constitutional rights. The only question that remains with respect to this issue is whether the error was prejudicial. In McCarthy, we held that there was little doubt that admission of the evidence of refusal in all probability strongly influenced the jury in reaching its decision notwithstanding the court’s instructions to disregard that evidence. The evidence against defendant in this case was no stronger than the evidence against McCarthy; accordingly, we hold that the error was prejudicial. Additionally, defendant contends that the trial court erred in denying his motion for a mistrial made after one of the arresting officers testified, in response to a prosecution question, that defendant, while in custody and after receiving a Miranda warning, had stated that “he had been read his rights many times before.” This evidence arguably apprised the jury of defendant’s prior arrest record and therefore, at least under the circumstances of this case, should not have been admitted. However, in view of our decision with respect to the admission of evidence of refusal, we need not decide whether admission of this evidence *265 would alone necessitate a new trial. On retrial, the prosecution should exercise caution so that this error is not repeated. Reversed and new trial granted. It is difficult to discern any real difference between permitting an arresting police officer in an aggravated robbery case to testify that he advised an accused of his right to remain silent and that anything he said might be used against him and allowing an arresting officer in a “driving under the influence” case to testify that he offered a chemical test. One inference that might be drawn from that testimony in the first case is that the accused, if innocent, would have denied his guilt and made explanation. There being no testimony that he did so would give rise to an inference of guilt. Similarly, in the instant case, testimony that the defendant was offered chemical testing to determine the alcoholic content of his blood and that he refused it gives rise to an inference that he thought the test would prove his guilt. Thus, when a defendant says “No, I will not take any test,” he is testifying against himself. Surely this is testimonial evidence. In State v. Beck, 289 Minn. 287 , 183 N. W. 2d 781 (1971), we held it was error to receive into evidence, over objection thereto, testimony of an arresting officer that he gave Beck a “Miranda warning.” One of the basic reasons for the Beck decision was that it is impermissible to penalize an individual for exercising his Fifth Amendment rights when he is under police custodial interrogation, so the fact that he stood mute or claimed his privilege may not be used against him at trial. Similarly, in a “driving under the influence case” we should not permit testimony that the accused was offered a chemical test and stood mute or claimed his privilege to refuse the test. Compare State v. Roberts, 296 Minn. 347 , 208 N. W. 2d 744 (1973).