v.
Herman Thomas
Lead Opinion
OPINION OF THE COURT
Jones, J.We uphold the constitutionality of subdivision 4 of section 1194 of the Vehicle and Traffic Law which provides that evidence of a defendant’s refusal to submit to a chemical test to determine the alcoholic content of his blood shall be admissible in any trial based on a violation of section 1192 of the Vehicle and Traffic Law, provided he was given sufficient warning, in clear and unequivocal language, of the effect of such refusal. The introduction of such evidence in accordance with this statute does not violate the defendant’s privilege against self incrimination under either the Federal or the State Constitution.
After a passing motorist had stopped them to report a serious accident, New York City Police Officers Mosiello and Spaulding proceeded immediately to the scene and found an automobile with its engine still running rammed into a fence separating the Major Deegan Expressway from the adjoining street. Defendant, alone in the front seat, was slumped over and bleeding profusely from the head. After calling for an ambulance the officers left their police car, walked over to the automobile and asked defendant who was fully awake what had happened. Both officers detected a heavy odor of alcohol on defendant’s breath and observed two bottles of wine, one full, the other more than half empty, on the floor by the front seat. The officers helped defendant out of his car and, no ambulance having arrived, took him to the hospital in their patrol car. It was clear to both officers, who together had effected 25 arrests for driving while intoxicated, that defendant was then in that condition.
While awaiting medical treatment in the emergency room, defendant was asked for his.driver’s license and automobile registration. After some difficulty he produced his driver’s license from his wallet but refused to part with his registration, at which point Officer Mosiello took his wallet from him,[*104] opened, it and in addition to the registration found several betting slips.
When Police Officer Haverlin, assigned to the Intoxicated Drivers Testing Unit, arrived at the hospital to administer a blood test to determine the extent of defendant’s inebriation, he informed defendant of his rights and warned him that refusal to take the blood test might result in the revocation of his driver’s license. When defendant refused to take the test he was further advised that pursuant to law his refusal to take the test could be introduced into evidence in court. Because of defendant’s continued refusal no test was administered (Vehicle and Traffic Law, § 1194, subd 2).
Defendant was thereafter charged with possession of gambling records in the second degree, promoting gambling in the second degree, and driving while intoxicated. After a pretrial hearing defendant’s motion to suppress the betting slips taken from his wallet was denied. At the trial the People were permitted, over objection, to introduce evidence of defendant’s refusal to submit to the chemical test to determine the alcoholic content of his blood. On the People’s case defense counsel sought to cross-examine the two arresting officers as to their knowledge at the time of the arrest of a civilian complaint which had previously been filed by defendant against a fellow officer. The prosecutor’s objection to such cross-examination was sustained. When defendant took the stand later in the trial he testified that one of the officers told him that the officer knew about the complaint and that the policeman against whom the complaint had been lodged would give the arresting officer a medal when he heard, about defendant’s arrest. The prosecutor’s objection to this testimony was sustained.
At the conclusion of the evidence the jury was charged, inter alia, that it could consider the evidence of defendant’s refusal to submit to the chemical test of his blood. Defense counsel’s request that such evidence could not be considered was denied. The trial court also submitted the charge of driving while impaired as a lesser included offense of driving while intoxicated. The jury acquitted defendant of the charges of promoting gambling and of driving while intoxicated, but found him guilty of possession of gambling records and of driving while impaired.
The Appellate Term reversed the judgment of conviction on[*105] both charges and ordered a new trial, holding that the exclusion of the circumstantial evidence of hostility of the arresting officers was reversible error and that the introduction of the evidence of defendant’s refusal to submit to a chemical test to determine the alcoholic content of his blood (as provided for by Vehicle and Traffic Law, § 1194, subd 4) violated his constitutional privilege against self incrimination. Leave was granted the People to appeal to our court, and we now reverse the order of Appellate Term and remit the case to that court for determination of the facts. (CPL 470.40, subd 2, par [b].)
With reference to the exclusion of the evidence offered in this case on the issue of hostility of the arresting officer witnesses, it is recognized as a general proposition that as to any witness "hostility to the party against whom he testifies, may be shown to affect his credibility” (Richardson, Evidence [10th ed], § 503, pp 490-491). The evidence sought to be introduced for that purpose in this instance, however, was remote; it was not evidence that defendant had made a complaint against the witness himself which, because of the normal reaction to the filing of a complaint, would have permitted an inference of personal hostility on the part of the witness who was testifying. Here the inference of hostility which defendant would have hoped that the jury might draw would have been because the action was taken against a fellow police officer, a significant step removed. Other than that they were members of the same police department and that the witness knew the other officer and had worked with him on one or two occasions, the nature or quality of the relationship between the witness and the officer against whom the complaint had been lodged was never established. Nor was any tender made to show the character or seriousness of the complaint, or whether it was warranted or could reasonably have been viewed as an unjustified attack on a public servant. Importing, as the admission of the evidence in this case would have, consideration by the jury of these collateral issues, it should be left to the sound discretion of the trial court whether to admit or to exclude as too remote the evidence of hostility. (3A Wigmore, Evidence [Chadbourn rev, 1970], § 949). We cannot conclude that the exclusion in this instance, in which the weighing of remoteness under all the circumstances was critical, was erroneous as a matter of law, although in most instances, at least where the hostility-provoking circumstance or action involves the witness himself, such factors are prop[*106] erly classified as going to probative worth rather than admissibility.
In consideration of defendant’s attack on the constitutionality of subdivision 4 of section 1194 of the Vehicle and Traffic Law, we start with the decision of the Supreme Court of the United States in Schmerber v California (384 US 757) in which that court held that withdrawal of blood from the human body for chemical analysis, although compelled, does not constitute evidence of a testimonial or communicative nature and does not, therefore, violate the Fifth Amendment privilege against self incrimination (cf. People v Craft, 28 NY2d 274). It follows from this holding that, inasmuch as a defendant can constitutionally be compelled to take such a test, he has no constitutional right not to take one.
The precise question before us is whether testimony may be admitted to establish that in fact this defendant refused to take the blood test, an issue expressly left open in Schmerber because it had not been preserved for review in that case (384 US, at pp 765-766, n 9). Realistically analyzed such testimony is relevant only in consequence of the inference it permits that defendant refused to take the test because of his apprehension as to whether he would pass it. To this extent the evidence may be characterized as "communicative or testimonial” rather than "real or physical” evidence or descriptive of an existing physical characteristic. But our inquiry does not end there. For example, evidence of flight of a defendant is admissible without question, yet the objective of offering such evidence is not to describe the geographical course the defendant followed in the particular instance or the manner in which he followed it (both of which would be irrelevant), but to permit the inference of a consciousness of guilt on his part.
Several courts which have confronted the issue have held that, inasmuch as the defendant has no constitutional right to refuse to take the test, the privilege against self incrimination is not applicable (People v Sudduth, 65 Cal 2d 543; State v Holt, 261 Iowa 1089; City of Westerville v Cunningham, 15 Ohio St 2d 121; State v Miller, 257 SC 213; State v Smith, 230 SC 164; cf. People v Ellis, 65 Cal 2d 529; People v Taylor, 73 Mich App 139).
We think the rationale should be stated more broadly. Although the evidence of the defendant’s refusal to take the test be classified as communicative or testimonial (and in our view it is immaterial for present purposes whether the partic[*107] ular proof introduced is in the form of a witness’ description of the defendant’s physical behavior in refusing to submit to the test or of testimony by the witness as to the defendant’s oral or written statement refusing to do so), it should be admissible so long as the defendant was under no compulsion of any sort to refuse to take the test.
Critical to this conclusion is the recognition that the constitutional provisions on which defendant would rely (the Fifth Amendment of the United States Constitution as made applicable to the State by the Fourteenth Amendment and section 6 of article I of the New York State Constitution)[1] do not preclude receipt in evidence of self incriminating material per se; only communicative or testimonial evidence that has been compelled is excludable in a criminal proceeding by virtue of the constitutional protection. Thus, a defendant’s pretrial confession of guilt — perhaps the ultimate in self incriminating matter — is admissible in evidence if voluntarily and knowingly made and preceded by adequate warnings, if warnings were required in the setting in which the confession was made. It is only communicative or testimonial evidence that has been extracted from the defendant by compulsion in some form that falls before the constitutional proscriptions.
Compulsion need not of course be physical; it may as well be accomplished by the State’s attaching to the alternative course of action a penalty, punishment or detriment for the imposition of which no . other justification exists and of which the defendant is therefore entitled to be free. If, to avoid that unwarranted threatened consequence, the defendant produces what is self incriminating evidence, that evidence is fairly to be regarded as having been compelled and thus constitutionally inadmissible in a criminal proceeding against him.
The application of this analysis is demonstrated by consideration of the proscription against comment on a defendant’s failure to take the witness stand during a trial against him. The alternative to silence available to the defendant is his submission to interrogation by the prosecution under oath when he becomes a witness in open court — thereby exposing himself to the risk of giving testimony against himself and forfeiting the protection against such conduct which the Constitutions confer. Comment oh defendant’s failure to take the[*108] stand is an impermissible " 'penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly’ ” (Griffin v California, 380 US 609, 620 [Stewart, J., dissenting]). By like token, "it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation” (Miranda v Arizona, 384 US 436, 468, n 37).
Quite a different situation is presented however when the prosecution offers evidence of the defendant’s refusal to submit to a blood alcohol test. In no way in such a circumstance is there any compulsion on the defendant to refuse to take the test — the conduct which is the subject of the challenged evidence; on the contrary, the compulsion is to take the test. Submission to the test, not its evasion, was what was desired by the police officers in this case and, before them, by the Legislature in the enactment of section 1194 of the Vehicle and Traffic Law, embodying as it did two penalties or adverse consequences of refusal — license revocation and disclosure of refusal in a prosecution for operating a vehicle while under the influence of alcohol or drugs. As an alternative to refusal, defendant had a legitimate option available to him, the choice of which would have involved no forfeiture of a constitutional privilege or a statutory right — i.e., he could have submitted to the chemical test offered to him (Schmerber v California, 384 US 757, supra). Before making his determination as to which course to follow, defendant was informed, as the statute required that he be, "in clear and unequivocal language” of the effect of a refusal. The choice whether to take the test or to refuse was entirely his, as the statute makes clear. Under the procedure prescribed by section 1194 of the Vehicle and Traffic Law a driver who has initially declined to take one of the described chemical. tests is to be informed of the consequences of such refusal. If he thereafter persists in a refusal the test is not to be given (§ 1194, subd 2); the choice is the driver’s. With the advice at hand, this defendant chose to persist in his refusal, incurring the statutory consequences attendant thereon, apparently satisfied that his interests would thereby be better served than by risking disclosure of whatever the test might have revealed as to the alcoholic content of his blood. As Chief Justice Traynor so cogently observed: "A guilty party may prefer not to find himself in a situation where consciousness of guilt may be inferred from his conduct, but it can scarcely be contended that the police,[*109] who seek evidence from the test itself, will tend to coerce parties into refusing to take tests in order to produce this evidence” (People v Ellis, 65 Cal 2d 529, 537, supra). In being presented with the choice defendant was confronted with no impairment of any right enjoyed by him, for he had no constitutional privilege not to submit to the chemical test and the statutory right not to take the test conferred by the Vehicle and Traffic Law was qualified by express provision for admissibility of proof of refusal in a prosecution of the type now before us.[2]
This analysis finds support in consideration of the inadmissibility of comment with respect to a defendant’s silence when he is arrested or accused of a crime. In such a situation he has the privilege under the Constitutions to remain silent and it is impermissible to penalize him for exercising that privilege. In the present case, defendant had no constitutional privilege or statutory right to refuse to take the test; hence comment on his refusal represents no infringement of privilege or right.
The conclusion we reach in this case is not inconsistent with that reached in People v Paddock (29 NY2d 504) and, earlier, in People v Stratton (1 NY2d 664), in both of which we found error in the admission of proof of a driver’s refusal to submit to a blood test on the trial of a charge which arose out of the operation of a vehicle while intoxicated. At the time those cases were decided the Vehicle and Traffic Law conferred an absolute right to refuse to submit to such a test, unqualified by any provision that evidence of such refusal might be received on trial of a charge arising out of the operation. Additionally, at the time of the Stratton case (before Schmerber) it was not yet clear that a defendant did not have a constitutional right to refuse to take a blood test. The theory of the Stratton case articulated at the Appellate Division was that “the fact that a defendant did what he had an absolute right to do cannot be used to create any unfavorable inference against him” (286 App Div, at p 326). We affirmed the disposition at the Appellate Division (1 NY2d 664).
[*110] As Judge Jasen pointed out in his concurring opinion in the Paddock case, by the time that case was before us it had been determined by the Schmerber decision that there was no constitutional right to refuse to submit to a blood test. The holding of inadmissibility of evidence of defendant’s refusal to submit had then to be predicated only on the unqualified statutory right of refusal conferred by section 1194 of the Vehicle and Traffic Law as it then read (29 NY2d, at pp 505-506). Inasmuch as that statutory right has now been modified and is qualified by the provision enacted by chapter 351 of the Laws of 1973 making evidence of refusal admissible, the decisions in Stratton and Paddock are no longer determinative.
In a different aspect, now that the authority for admission of the evidence is expressly embodied in the only statutory predicate for refusing to take the test, the admissibility of refusal evidence may also be viewed as a permissible condition reasonably attached to the grant of permission to operate a motor vehicle on the highways of the State. No physical characteristic or condition could be more closely related to incompetence to operate a motor vehicle than inebriation, and no aspect of motor vehicle regulation can be more important to the welfare of both operators and the public than keeping inebriated drivers off the public highways.
We conclude that the evidence of defendant’s persistent refusal to take the test was properly admitted, that the jury was correctly charged that it could consider such evidence, and that subdivision 4 of section 1194 of the Vehicle and Trafile Law is not violative of a defendant’s rights under either Federal or New York State Constitution.
Accordingly, the order of the Appellate Term should be reversed, and, inasmuch as the reversal in that court was on the law, the case remitted to that court for determination of the facts.
The protection against self incrimination in both Constitutions is identical: "No person * * * shall be compelled in any criminal case to be a witness against himself’.
Proof, of which there is none here, that might be explanatory of a particular defendant’s refusal to take the test unrelated to any apprehension as to its results (as, for instance, religious scruples or individual syncopephobia) should be treated not as tending to establish any form of compulsion but rather as going to the probative worth of the evidence of refusal (Commonwealth v Robinson, 229 Pa Super Ct 131, 148-149; but see State v Andrews, 297 Minn 260). Thus, a jury might in such circumstances reject the inference of consciousness of guilt which would otherwise have been available.
Dissent
(dissenting). I would uphold the Appellate Term in its unanimous determination that the defendant was deprived of a fair trial both because of the admission of the defendant’s refusal to submit to a blood test and because it was error to foreclose the defendant from establishing the hostility of the prosecution’s witnesses.
As I see it, in concluding that evidence of a refusal to submit to a blood test is admissible against an accused in a[*111] criminal prosecution, the majority misconceives the essential character of such evidence, which appears fully protected by the Fifth Amendment. This view does not break new ground. Long before the enactment of subdivision 4 of section 1194 of the Vehicle and Traffic Law it reflected the established rule in New York (People v Paddock, 29 NY2d 504; People v Stratton, 1 NY2d 664).
True, Schmerber v California (384 US 757), on which the majority rests much of its argument, rebuffed all Federal constitutional objections to the admissibility of the results of the blood test the defendant there was compelled to undergo. That decision, however, was expressly premised on the distinction between " 'communications’ ” or " 'testimony’ ” on the one hand and " 'real or physical evidence’ ” on the other (384 US, at p 764). I find it difficult to accept the idea that evidence of refusal to submit to a test is not communicative and testimonial. In contrast to physical evidence directly probative of a crime, such as the results of the blood test actually undertaken in Schmerber, the sole purpose for introducing refusal evidence is to permit triers of fact to infer consciousness of guilt (People v Von Werne, 41 NY2d 584, 588; Note, Constitutional Limitations on the Taking of Body Evidence, 78 Yale LJ 1074). ''[I]f a communication, written, oral, or otherwise, involves an accused’s consciousness of the facts and the operations of his mind in expressing it, such is testimonial and communicative in nature” (Dudley v State, 548 SW2d 706, 707 [Tex]; emphasis in original). Interestingly, the Schmerber opinion, which did not reach the question before us now, itself stated "[i]t is clear that the protection of the privilege reaches an accused’s communications, whatever form they might take, and the compulsion of responses which are also communications” (Schmerber, supra, at pp 763-764 [emphasis mine]).[1]
Not surprisingly, then, this court today attempts to base its decision on what it terms a more broadly stated rationale. It argues that the defendant was under no compulsion to refuse to take the test. I respectfully suggest that this approach is[*112] more semantic than substantive. How can it be said the defendant in this case was not subjected to compulsion? He had to either submit to the test or refuse to do so; as the statute was structured, either alternative was capable of producing evidence against him. It would not be contended that if an arrested suspect, having been given Miranda warnings, is queried about the crime under investigation, his refusal to answer is admissible against him merely because it was not compelled (see People v Von Werne, 41 NY2d 584, supra). I find this indistinguishable in principle from the present case.
The majority’s reply would apparently be that, in the Miranda context, the defendant has a constitutional right not to respond, whereas Schmerber establishes that there is no constitutional right to refuse to submit to a blood test. The fact is, however, that Schmerber did not say there was no right to refuse to submit to a blood test. It merely held that, when an accused does refuse, compelled submission does not produce inadmissible evidence since a blood sample is physical — as opposed to testimonial or communicative — evidence.[2] Furthermore, though it may well be true that the primary rationale for excluding refusal evidence in the Miranda context has been prophylaxis — any other course might undermine the constitutional protection itself — broader principles are at stake. Refusal evidence is protected in its own right by the Fifth Amendment because it is self incriminating testimony the Government forces from an accused. Indeed, I view it as first cousin to thought control itself.
This is not to denigrate the Legislature’s laudable and necessary attempts to keep the drunk driver off the road, and I have no qualms about revoking the license of a driver who refuses a founded police request to submit to a blood test. But criminal prosecutions under the Vehicle and Traffic Law are another thing. They must comport with the Fifth Amendment. The Legislature’s decision to prohibit compelled blood tests was an enlightened and humane one (see Vehicle and Traffic Law, § 1194, subd 2). But this praiseworthy conduct does not[*113] permit the State to impinge on a basic right. I would therefore hold that subdivision 4 of section 1194 of the Vehicle and Traffic Law is unconstitutional and that it was error to admit the defendant’s refusal into evidence.[3]
I am persuaded too that the trial court’s rejection of defense counsel’s offer to impeach the police officer’s testimony with evidence of his hostility to the defendant also commands reversal. The facts bespeak the tenuousness of the People’s case and the importance of the testimony sought to be impeached.
The uncontradicted testimony is that defendant was driving in a rented taxicab when another driver cut him off and caused his vehicle to strike a highway divider. The proof merely was that an accident had happened, hardly an event to be regarded as extraordinary or inculpatory per se in this automobile age; there was no evidence whatsoever as to the operation of the taxicab before the accident, certainly none indicating any conduct associated with drunken driving.
It is conceded that defendant suffered severe injuries. Right after the accident he was bleeding profusely from lacerations on the head so extensive that fully 117 stitches were required for their approximation. As is obvious, observations of a person in such a state are without any worth in deciding whether he is under the influence of alcohol. If anything, defendant’s insistence that the police obtain medical attention for him before anything else bespeaks sobriety. When, midst the emergency treatment at the hospital, the police continued to badger him tq submit to an immediate blood test, his declination was also compatible with a lack of intoxication.
The People relied in the main on the testimony of the officers who claimed they had detected a "heavy” odor of alcohol on the defendant’s breath. But "heaviness” of a breath odor is related more to the type of beverage imbibed (see Erwin, Trial of a Drunk Driving Case, Trauma, Oct., 1959, p 108 [breath tests unreliable]) or the nature of the stomach contents an injured person regurgitates rather than to the quantity of alcohol consumed. It also tells nothing about[*114] whether it was ingested too recently to have affected the nervous system. The police also testified that they found two bottles of wine, one unopened, one half full, in the car (see Erwin, Trial of a Drunk Driving Case, Trauma, Oct., 1959, p 49 [at least 16 oz. of 20% fortified wine must be consumed to cause intoxication]). But the car was borrowed. And the vehicle inventory the police prepared made no reference to the bottles; to explain this discrepancy the officers stated they had turned over this valuable evidence of the crime to defendant’s brother. There was no record that they had done so, and the brother categorically denied the story.
Even more to the point, putting aside defendant’s own denial that he was drinking, arrayed against the assertions of the police was disinterested evidence of a highly convincing sort. One was clear proof that defendant was interdicted from drinking alcohol because he suffered from active stomach ulcers. True, people do not always follow the course doctors prescribe for them, but in this case defendant’s claim that he did not drink had some confirmation from the presence in the car of a bottle of Gellusil, a recognized antiacid used to assuage ulcers. Most important, however, was the hospital chart. Though the examination in this case had to have focused closely on defendant’s head, the record not only failed to note any finding of intoxication, but even of any odor of alcohol. This is all the more revealing since standard medical practice calls for neurological tests in head injury cases as a matter of routine. These would disclose any measurable alcoholic effect on reflexes; there was none here. This recital may not be determinative of guilt or innocence; but, at the very least, I suggest it demonstrates that the case was close.
It was in this context — with the police odor-of-alcohol testimony the sole direct evidence of intoxication — that the defense sought to introduce evidence that, on the occasion of the arrest, one of the officers had recognized the defendant as the complainant in a review board proceeding against another officer and had stated that "[the fellow officer was] going to give me a medal for this [arrest]”. Yet, the trial court excluded this proof at every turn. As I see it this constituted an abuse of discretion as a matter of law (People v McDowell, 9 NY2d 12, 15; Richardson, Evidence [10th ed], §§ 503, 504; 3A Wigmore, Evidence [Chadbourn rev, 1970], § 950). I would find nothing remote about the proffered proof. Quite the contrary, if it were to be believed it would have exposed the officer’s[*115] contemporaneous awareness of the prior complaint at the time of the arrest and a degree of consciousness great enough for him to have blurted it out to the defendant in words of sarcasm. These would permit the inference of an immediate motive for the charges against the defendant.[4]
All the more is this so in a case where the testimony whose motivation is attacked is at best unreliable. For here the observations, if any, of defendant’s behavior made by the police were scanty, and the officers lacked competence to judge whether the source of any erratic behavior was intoxication as opposed to the aftereffects of the injury and its accompanying shock.
Accordingly, I would affirm the order of the Appellate Term.
Chief Judge Breitel and Judges Jasen, Gabrielli, Wachtler and Cooke concur with Judge Jones; Judge Fuchsberg dissents and votes to affirm in a separate opinion.
Order reversed and the case remitted to the Appellate Term, First Department, for further proceedings in accordance with the opinion herein.
In any event, we would be entitled to afford defendants in this State greater safeguards than in the Federal system by virtue of our own self incrimination clause (NY Const, art I, § 6) which we are free to interpret more protectively than the Supreme Court does the Fifth Amendment. (See Oregon v Hass, 420 US 714; Cooper v California, 386 US 58; Lego v Twomey, 404 US 477; Barker v Wingo, 407 US 514.) Thus, there is no reason for us to overrule Paddock and Stratton and the sensible approach they take to this problem.
Moreover, the court expressly conceded that their "conclusion would not necessarily govern had the State tried to show that the accused had incriminated himself when told that he would have to be tested. Such incriminating evidence may be an unavoidable by-product of the compulsion to take the test” (Schmerber, supra, at p 765, n 9). In the present case, the refusal is just such an unavoidable by-product of the police request that the defendant submit to the blood test.
Because I find subdivision 4 of section 1194 of the Vehicle and Traffic Law to be violative of fundamental Fifth Amendment principles, it is not necessary in this case to treat with the further objection that a refusal to submit to a blood test might be based on factors other than guilt of the charge, whether it be religious opposition, fear of hypodermic needles (see Schmerber, supra, at p 765, n 9), or simply principled objection to this kind of violation of one’s person by the State.
The majority also argues that the defense had failed to show the relationship between the arresting officer and the target of the complaint. It was the trial court’s hasty interjection, however, that cut off any such attempts, and I would not in any event require such showings with undue strictness because of the unavailability of examinations before trial in criminal cases.