State v. Blouin

State v. Blouin (97-053)

[Filed 26-Jun-1998]

NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.

No. 97-053

State of Vermont Supreme Court

On Appeal from
v. District Court of Vermont,
Unit No. 2, Franklin Circuit

Raymond G. Blouin October Term, 1997

Michael S. Kupersmith, J.

Robert L. Sand, Department of State's Attorneys, Montpelier, for Plaintiff-Appellant.

Robert Appel, Defender General, and Henry Hinton, Appellate Attorney, Montpelier, for
Defendant-Appellee.

PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.

AMESTOY, C.J. The State brings this interlocutory appeal from a
district court order excluding evidence in a prosecution for driving under
the influence, third offense, in violation of 23 V.S.A. § 1201(a)(2). The
court excluded evidence of (1) defendant's refusal to perform a roadside
sobriety test, and (2) defendant's response to the question of whether he
had "burped, belched or vomited" during the fifteen minutes prior to
administration of an evidentiary breath test. The State contends that no
constitutional, statutory or other rule of law requires exclusion of the
evidence. We agree and therefore reverse.

In September of 1995, after observing a vehicle being driven with a
burned out headlight, a Vermont State Police trooper effected a stop of
defendant's vehicle, then approached on foot. The trooper detected the odor
of alcohol emanating from defendant's car, noticed that his eyes were
watery and bloodshot, that his speech was slurred, and that a twelve-pack
of beer and several empty containers lay on the passenger side floor. The
trooper asked if he had been drinking, to which defendant responded,
"[y]es, a couple of beers." The trooper then asked defendant to step
out of the car and perform a horizontal gaze nystagmus
("HGN") test.1 As the trooper later testified, defendant "wouldn't
follow the pen with his eyes, he kept moving his head, so I was unable to
do that test." Following this refusal to perform the HGN test, the trooper
requested no further physical performance tests. The trooper then
administered an Alcosensor test, results of which indicated alcohol in
defendant's system. Defendant was then taken to police barracks, placed in
a processing room and then advised of his rights according to the standard
Vermont State Police "DUI Processing Form." As part of processing,
defendant was advised of his constitutional rights under Miranda v.
Arizona, 384 U.S. 436 (1966). He indicated his understanding of those
rights and that he did not wish to answer any further questions.

The trooper continued processing by explaining defendant's implied
consent rights under 23 V.S.A. § 1202 et seq. Defendant waived the
opportunity to consult with counsel and agreed to perform an evidentiary
breath test. As part of administering the breath test, the trooper
inquired whether defendant had "burped, belched or vomited within the last
fifteen minutes." The purpose of the question is to ensure that trace
amounts of alcohol are not in the mouth which could render an inaccurate
test result. According to the trooper, defendant initially said he had
just burped, but then corrected himself and stated that he had "burped in
the cruiser fifteen minutes ago."

Defendant then performed an evidentiary breath test, which revealed a
blood-alcohol content in excess of the legal limit. After the State
brought DUI charges, defendant moved to exclude evidence of his refusal to
perform the HGN test, as well as the "burp question" and defendant's
subsequent reply. The trial court excluded the challenged evidence, and
granted the State permission to take interlocutory appeal. See V.R.A.P.
5(b); 13 V.S.A. § 7403.

The State first argues that the district court improperly excluded
evidence of defendant's refusal to perform the HGN test. The State
contends that a motorist's refusal to perform a roadside sobriety test is
relevant evidence in a DUI prosecution, and that no constitutional,
statutory or other rule of law exists to render the evidence inadmissible.
The district court, on the other hand, determined that "a trial court may
not admit evidence of a refusal to comply with an officer's request if the
accused had a right to so refuse." (Citing State v. Hedding, 122 Vt. 379,
382, 172 A.2d 599, 601 (1961)). Defendant argues that the district court's
ruling is correct because defendant "had the natural and inherent right to
refuse" performance of the HGN test, and that using the refusal evidence
against him would be "fundamentally unfair." We disagree.

Relevant evidence is admissible, except as limited by state or federal
constitution, statute, rule of evidence, or other principle of law. See
V.R.E. 402. In this case, defendant concedes that he refused to perform
the HGN test. Evidence that a motorist refused to perform a sobriety test
is probative of guilt, and therefore relevant. See State v. Curavoo, 156
Vt. 72, 75, 587 A.2d 963, 964-65 (1991) ("There being no statutory ground
for refusal to submit to field dexterity tests, `there is no reason not to
consider refusal as evidence of consciousness of guilt.'") (quoting State
v. Hoenscheid, 374 N.W.2d 128, 132 (S.D. 1985)). Inasmuch as defendant's
refusal is relevant, the issue is whether there exists any rule of law
which would require exclusion.

As an initial matter, we find unavailing defendant's argument that
introduction of his refusal to perform the HGN test violates his privilege
against self-incrimination. The HGN test elicits a person's physical,
rather than testimonial, response, and therefore does not trigger the
privilege against self-incrimination. See Pennsylvania v. Muniz, 496 U.S.
582, 602 (1990) (request to perform HGN test elicits "physical" rather than
"testimonial" evidence and thus does not violate privilege against
self-incrimination); South Dakota v. Neville, 459 U.S. 553, 564 (1983)
(refusal to take blood-alcohol test, after police lawfully requested it, is
not an act coerced by officer, and thus is not protected by privilege
against self-incrimination); State v. Brean, 136 Vt. 147, 151, 385 A.2d 1085,
1088 (1978) (evidence of refusal to perform blood alcohol test not violative
of federal or state privilege against self-incrimination).

Nor do we find any statute or other rule of law which would require
exclusion of the refusal evidence. Defendant contends that the structure
of the implied consent statute shows legislative intent to exclude evidence
that a motorist refused to perform roadside sobriety tests such as the HGN.
He bases this argument on the statute's specific provision that "[i]f the
[motorist] refuses to submit to an evidentiary [breath] test . . . the
refusal may be introduced as evidence in a criminal proceeding." 23 V.S.A.
§ 1202(b). In contrast, the statute does not specifically provide for
admission of evidence of a motorist's refusal to perform the HGN or other
physical sobriety tests. He cites the principle of expressio unius est
exclusio alterius to suggest legislative intent to exclude evidence of
refusal to perform the HGN. We find this argument without merit.

The statute creates a detailed scheme under which motorists in Vermont
give "implied consent" to provide an evidentiary breath sample for testing.
See id. § 1202(a). The statute grants the motorist the right to refuse the
test, see id. § 1202(b), but explicitly sets forth consequences that follow
a refusal, see id. (refusal introduced in criminal proceeding); id. §
1202(d)(2) (license suspended); id. § 1202(d)(6) (if previously convicted,
motorist subject to prosecution for "criminal refusal"). In light of the
statute's overall context, it is understandable why the Legislature would
specify the admissibility of refusing the breath test.

On the other hand, the statute is silent with respect to physical
sobriety tests such as the HGN. Defendant and the State agree that the
police have a right to request performance of physical sobriety tests such
as the HGN, and that defendant has a right to refuse performance of the
test. We find that to be the correct position in light of the legitimate
nature of the requested physical tests. For the same reason, inasmuch as
defendant's refusal to perform the HGN test goes to consciousness of guilt,
see Curavoo, 156 Vt. at 75, 587 A.2d at 965, the refusal evidence is
admissible. In the absence of statutory language prohibiting introduction
of the refusal evidence, we will not invent it. See State v. Brooks, 162
Vt. 26, 29, 643 A.2d 226,228 (1993).

For the same reason, Hedding, supra, may be distinguished. Hedding
involved construction of an earlier version of the implied consent statute.
When that case was decided, the statute provided that the motorist could
refuse an evidentiary breath test, and that refusal would lead to license
suspension. The statute was silent, however, on whether the refusal was
admissible at trial. Given the other consequences of refusal articulated
in the statute, the Hedding court inferred legislative intent that the
refusal be excluded. See 122 Vt. at 382, 172 A.2d at 601. The Court
stated: "`The fact that a defendant did what he had an absolute right to do
cannot be used to create any unfavorable inference against him.'" Id.
(quoting People v. Stratton, 143 N.Y.S. 2d 362,365 (A.D. 1955)). The
holding in Hedding is "no longer viable" due to the change in statutory
language. Brean, 136 Vt. at 152, 385 A.2d at 1088.

Defendant's final argument on this issue is that, even if no rule of
law expressly requires exclusion of the refusal evidence, the refusal is
only weakly probative of guilt and may be excluded under V.R.E. 403. We
need not address this contention because the district court excluded the
evidence as a matter of law without considering its probative value. At
trial the court should address the refusal's probative value under the
rules of evidence.

II.

The State's second argument is that the district court erroneously
excluded defendant's answer to the "burp question." Because the burp
question is a means of bolstering the accuracy of the test, both the
district court and the defendant characterize it as a question designed to
elicit an incriminating response from the defendant. See Muniz, 496 U.S.
at 602 n.14 ("[w]ithout obtaining a waiver of the suspect's Miranda rights,
the police may not ask questions, even during booking, that are designed to
elicit incriminatory admissions.") (citations omitted). The State, on the
other hand, contends that the burp question is used only to ensure accurate
breath test results.

An individual in police custody may not be compelled to give
"testimonial" evidence. See Schmerber v. California , 384 U.S. 757, 761
(1966). Police are not required, however, to refrain from taking "real or
physical evidence" that relates to possible criminal activity. Id. at 764.
We have held before that an evidentiary breath test is not testimonial in
nature, but rather is physical, and thus may be administered even after a
defendant has invoked Miranda rights. See State v. Bassett, 128 Vt. 453,
266 A.2d 438 (1970).

In Muniz, 496 U.S. at 603-04, the United States Supreme Court upheld
the introduction of responses to "limited and carefully worded inquiries"
as to whether a motorist understood instructions to a physical sobriety
test, even after that individual was in custody and entitled to Miranda
warnings.2 The court reasoned that the inquiries were "necessarily
`attendant to' the police procedure," and were "not elicited in response to
custodial interrogation." Id. We find the burp question analogous to the
inquiry at issue in Muniz.

The "interrogation" of which defendant complains came not in the
course of "custodial interrogation" as that phrase has been defined by the
United States Supreme Court, see Muniz, 496 U.S. at 603 (custodial
interrogation did not include limited and carefully worded inquiries
necessarily "attendant to" legitimate police procedure), but instead during
the phase of proceedings in which defendant was asked -- and agreed -- to
provide a breath sample. In the context of an arrest for driving while
intoxicated, a police inquiry into whether the suspect will perform an
evidentiary blood alcohol test "is not an interrogation within the meaning
of Miranda." Neville, 459 U.S. at 564 n.15.

Nor are we persuaded that the burp question was devised to elicit
incriminating responses to be used against the defendant in court.
Defendant consented to the administration of a breath test. The burp
question is designed to help assure the accuracy of the test -- an
objective as significant to the suspect as to the State. In and of itself,
there is nothing incriminating about defendant's response: if defendant had
answered yes to the question, the officer would have merely waited another
fifteen minutes to obtain accurate test results. In short, the burp question
is not interrogation. See Rhode Island v. Innis, 446 U.S. 291, 301 (1980)
(term "interrogation" under Miranda refers to "express questioning . . . [and]
words or actions on the part of the police (other than those normally attendant
to arrest and custody) that the police should know are reasonably likely to
elicit an incriminating response from the suspect"). The district court erred in
excluding the burp question and answer.

Reversed and remanded.

FOR THE COURT:

_______________________________________
Chief Justice

__________________________________________________________________________________

FOOTNOTES

1 The HGN test involves moving an object such as a pen across the
subject's field of vision to observe the manner in which the subject's eyes
follow the object. As the subject follows the object, an overabundance of
eye twitching indicates possible intoxication. See 1 R. Erwin, Defense of
Drunk Driving Cases, § 10.04[5], at 10-18-10-19 (1997).

2 The dissent attempts to distinguish Muniz from the instant case by
characterizing the incriminating utterances in Muniz as "voluntary." They
were voluntary only "in the sense that they were not elicited in response
to custodial interrogation," but instead came in response to "the limited
and focused inquiries" necessarily "`attendant to'" legitimate police
procedure. Muniz, 496 U.S. at 603-05. That is precisely the status of
defendant's answer to the burp question.

_______________________________________________________________________________

Dissenting

No. 97-053

State of Vermont Supreme Court

On Appeal from
v. District Court of Vermont
Unit No. 2, Franklin Circuit

Raymond G. Blouin October Term, 1997

Michael S. Kupersmith, J.

Robert L. Sand, Department of State's Attorneys, Montpelier, for
Plaintiff-Appellant.

Robert Appel, Defender General, and Henry Hinton, Appellate Attorney,
Montpelier, for Defendant-Appellee.

PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.

SKOGLUND, J., dissenting. The Court is called upon to decide whether
a defendant's Fifth Amendment rights as described in Miranda v. Arizona,
384 U.S. 436 (1966), were violated when he was in custody, had indicated
his desire to not answer questions, and was asked, prior to the
administration of an evidentiary breath test, if he had burped. I believe
the question is purely investigative and aimed at obtaining a testimonial
response that will assist in proving the element of intoxication and,
coming as it did after the defendant had invoked his right to remain
silent, it violated his Fifth Amendment right against self-incrimination.
Therefore, his answer should be suppressed.

As the majority notes, the Self-Incrimination Clause of the Fifth
Amendment is not necessarily implicated every time a person suspected of
criminal activity is compelled in some way to cooperate in generating
evidence that later may be used against him. The privilege only protects
the accused from being compelled to provide evidence that is testimonial or
communicative in nature. See Schmerber v. California, 384 U.S. 757, 761
(1966). To be testimonial, an accused's communication must, "explicitly or
implicitly, relate a factual assertion or disclose information." Doe v.
United States, 487 U.S. 201, 210 (1988).

The privilege, however, does not protect a suspect from being
compelled by the State to produce "real or physical evidence." Schmerber,
384 U.S. at 764.1 There are other exceptions to the privilege. In
addition to a "routine booking question" exception to the Miranda rules,
2 as set forth in Pennsylvania v. Muniz, carefully scripted inquiries
or instructions on how to perform field sobriety tests do not violate a
suspect's Fifth Amendment rights when they are not designed to elicit
incriminating evidence, and are "attendant to" an established police
procedure. 496 U.S. 582, 603-04 (1990). For example, when an officer reads
the carefully scripted instructions on Vermont's implied consent law to an
arrestee, the instructions do not constitute "interrogation" and the simple
inquiry, "do you understand these instructions?," does not call for an
incriminating response.

I disagree, however, with the majority holding that the "burp"
question is in the nature of limited and carefully scripted instructions to
the accused concerning the taking of a breath test. While the majority
finds the question to be a legitimate component of an evidentiary breath
test, intended "to protect against an erroneous result," I believe the
interrogatory is designed to bolster the quality of evidence against the
suspect and, thus, calls for an incriminating response.3

The holding of Muniz does not support the majority's treatment of the
"burp" question. The incriminating utterances defendant sought to suppress
in Muniz, made during the physical sobriety tests, were voluntary and not
elicited in response to questions from the processing officer. Muniz's
statements were non-sequiturs; they were not responsive to the instructions
being given.4 Therefore, the Court found that the absence of Miranda
warnings did not require suppression of the statements. See Muniz 496 U.S.
at 604-05. In contrast, the response defendant seeks to suppress, in the
present case, was compelled by a direct question, "Did you burp?" His
answer was not a spontaneous, voluntary statement.

When analyzing whether a question asked by a law enforcement officer
is interrogative, courts have considered the totality of the circumstances
surrounding the officer's actions. In United States v. Casiano, the court
reasoned that while "`the subjective intent of the agent is relevant but
not conclusive,'" "`the relationship of the question asked to the crime
suspected is highly relevant'" in making such a determination. 862 F.Supp
52, 54 (S.D.N.Y. 1994) United States v. Gonzalez-Mares, 752 F.2d 1485, 1489
(9th Cir. 1985)); see also State v. Walton, 824 P.2d 533, 535 (Wash. App
1992). Thus, when the question posed has relevance to the suspected crime,
seemingly innocuous questions may constitute custodial interrogation and courts
have suppressed both questions and answers when Miranda warnings were lacking
or where invocation of the Fifth Amendment right was not honored by law
enforcement.

For example, in State of Minnesota v. Wiberg, 296 N.W.2d 388 (Minn.
1980) police came to a woman's home to search for 550 stolen firearms.
Miranda warnings were given and the woman indicated, in the presence of the
questioning officer, that she wished to remain silent. Disregarding her
invocation, the officer picked up a purse and asked her it was her purse.
See id. at 390. She admitted that it was. In the purse was found a pistol
and some gun literature. Her response was admitted at trial over her
objection. On appeal, the court found the officer's question violated
defendant's constitutional rights and, as a result, it was error for the
trial court to admit evidence of her response to the question of ownership.
See id. at 391; see also People v. Mack, 895 P.2d 530 (Colo. 1995) (in
prosecution for unlawful distribution and sale of cocaine, question -- "Is
this your key" -- which referred to a hotel room key and posed to suspect
believed to be dealing drugs from same hotel room, was custodial
interrogation without benefit of Miranda warning; and suspect's answer to
question was suppressed); Commonwealth v. Woods, 645 N.E.2d 1153, 1157
(Mass. 1995) (noting that Miranda warning is required before asking
defendant about employment status in a drug case where defendant's
statement that he is unemployed may prove incriminating because defendant
possessed substantial amount of cash at time of arrest); State v. Stevens,
511 N.W.2d 591, 599 (Wis. 1994).

In State v. Chihanski, 540 N.W.2d 621 (N.D. 1995), defendant in a
drunk driving case argued that the trial court erred when it denied her
motion to suppress a statement made without benefit of Miranda warnings.
Prior to taking a breath test, defendant was asked have you put "anything
in [your] mouth since the time of arrest," to which she responded "no."
Id. at 623. The court found that substantial evidence existed, without
Chihanski's statement, to support the officer's determination that she had
not eaten, drunk, or smoked for twenty minutes before taking the breath
test. See id. at 624. Thus, the court held that even if the statement was
testimonial, requiring Miranda warnings, admitting it in the absence of the
warnings was harmless error. See id.

In this case, defendant was given Miranda warnings -- he was told that
he had a right to remain silent. He indicated that he did not want to
answer questions and, therefore, exercised his right to cut off
questioning. See Miranda, 384 U.S. at 474 When a defendant exercises
this right, the police must scrupulously honor such a request. See
Michigan v. Mosley, 423 U.S. 96, 103 (1975) ("A reasonable and faithful
interpretation of the Miranda opinion must rest on the intention of the
Court in that case to adopt `fully effective means ... to notify the person
of his right of silence and to assure that the exercise of the right will
be scrupulously honored.'") (quoting Miranda, 384 U.S. at 479). In this
case, as in the cases cited above, Defendant's attempt to cut off
questioning was not scrupulously honored.

When a law enforcement officer asks a defendant the "burp" question
during processing for DUI, the officer has already determined that there
was probable cause to believe the defendant was intoxicated while operating
a motor vehicle -- through observation of erratic operation of the vehicle;
through the detection of the odor of intoxicants, bloodshot or watery eyes,
or slurred speech; from results of an alco-sensor; or from a suspect's
spontaneous utterances. The question -- "did you burp?" -- is not a
preamble to a lesson in manners. When the question is asked, the officer
is beyond the initial determination that a crime has been committed and is
in the process of capturing evidence to use against the defendant in a
criminal prosecution.

The "burp" question that was posed to defendant came after a
preliminary investigation, after arrest, after defendant invoked his Fifth
Amendment right of silence, and without any subsequent express waiver of
that right. The question was directly related to the charge confronting
defendant. The question was not "innocent of any investigative purpose."
United States v. Gotchis, 803 F.2d 74, 79 (2nd Cir. 1986). By answering
that he had not burped in the fifteen minutes preceding the breath sample,
defendant communicated an assertion of fact which contributes to the evidentiary
foundation of the State's case against him. His answer discloses information that
"could be used in a criminal prosecution or could lead to other evidence that might
be so used." Kastigar v. U.S., 406 U.S. 441, 445 (1972). In other words, he was
asked, in violation of his constitutional right, for information to assist in
developing credible evidence intended to be used against him to establish
his degree of intoxication.5

While it may increase the observational responsibilities of the
processing officer, the State must "`shoulder the entire load'" in
establishing the reliability of the evidence test to be used against a
defendant. Miranda, 384 U.S. at 460 (quoting 8 J. Wigmore, Evidence §
2251, at 317 (McNaughton rev. 1961)). The defendant should not be
compelled to provide testimonial evidence that the test results were
uncontaminated.

Therefore, while I agree with the majority's conclusion that
introduction of defendant's de facto refusal to perform the HGN test does
not violate his constitutional rights, I would affirm the trial court's
suppression of the "burp" question.

_______________________________________
Associate Justice

_________________________________________________________________________________

FOOTNOTES

1 While a suspect can be required to provide real or physical evidence,
such evidence must be obtained in a manner that does not entail any
testimonial act on the part of the suspect. In Schmerber v. California,
for example, the Court held that the police could compel a suspect to
provide a blood sample because the compulsion was outside of the Fifth
Amendment's protection: "Not even a shadow of testimonial compulsion upon
or enforced communication by the accused was involved either in the
extraction or in the chemical analysis." 384 U.S. 757, 765 (1966).

2 Examples of permissible routine booking questions include
questions regarding an arrestee's name, address, height, weight, eye color,
date of birth, and current age. See Pennsylvania v. Muniz, 496 U.S. 582,
60-602 (1990).

3 By incriminating response, I "refer to any response -- whether
inculpatory or exculpatory - - that the prosecution may seek to introduce
at trial." Muniz, 496 U.S. at 615 (Marshall, J., concurring). For
purposes of exclusion, the court may draw "`no distinction . . . between
inculpatory statements and statements alleged to be merely "exculpatory."'"
Id. (quoting Miranda v. Arizona, 384 U.S. 436, 476-77 (1966)).

4 At Muniz's trial in the Pennsylvania Superior Court, evidence
was adduced showing that during the course of the three sobriety tests,
Muniz attempted to explain his difficulties in performing the various tasks
and often asked for further clarification of the tasks he was to perform.
During the explanation of the Implied Consent Law, he made several
inquiries about the legal implications of the law and said he'd recently
finished a license suspension and did not want his license suspended again.
See Pennsylvania v. Muniz, 547 A.2d 419, 423 (Pa. Super. Ct. 1988).

5 Because it is not the defendant's burden to prove his innocence,
I am not persuaded by the majority's conclusion that the accuracy of the
statutorily required breath test is an objective, which is as significant
to the suspect as it is to the State.