Larry Deering v. Harold M. Brown, Attorney General of the State of Alaska

INTRODUCTION

The fifth amendment “guarantees ... the right of a person to remain silent unless he chooses to speak in the unfettered expression of his own will, and to suffer no penalty ... for such silence.” Malloy v. Hogan, 378 U.S. 1, 8 , 84 S.Ct. 1489, 1493-94 , 12 L.Ed.2d 653 (1964). In Schmerber v. California, 384 U.S. 757 , 86 S.Ct. 1826 , 16 L.Ed.2d 908 (1966), the United States Supreme Court ruled that the fifth amendment protects an accused only from being compelled to testify against himself or otherwise provide the state with evidence of a testimonial or communicative nature. The Court then concluded that, because the results of a blood alcohol “breathalyzer” test are physical rather than testimonial or communicative evidence, a state has the power to administer such a test against a defendant’s will without infringing on his fifth amendment privilege.

More recently in South Dakota v. Neville, 459 U.S. 553 , 103 S.Ct. 916 , 74 L.Ed.2d 748 (1983) the Court addressed a question reserved in Schmerber , that is, whether, in order to prove a charge of driving under the influence of alcohol, the admission into evidence of a defendant’s refusal to submit to a breathalyzer…

dissenting:

The crucial issue in this case is whether a state may use an individual’s silence following advisement of the constitutional right to remain silent as evidence to establish *545 criminal conduct. The majority avoids this by posing the issue as whether evidence of Deering’s “silent refusal” may constitutionally be used to support a criminal charge of refusing to submit to a breathalyzer test required by statute.

I dissent because the majority opinion 1) penalizes an individual for exercising the constitutional right to remain silent, and 2) allows the testimonial use of “nontestimo-nial” evidence, in violation of Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966).

I.

The police officers twice informed Deer-ing of his Miranda rights, and each time followed with a request that he submit to a breathalyzer test. On each occasion he remained silent and this silence was used against him at trial.

The majority is correct in recognizing that Alaska is not using Deering’s silence as evidence of his having violated the statute prohibiting drunk driving. However, the state is using Deering’s silence to prove violation of a different criminal statute.…

839 F.2d 539 56 USLW 2482 , 24 Fed. R. Evid. Serv. 1086 Larry DEERING, Petitioner-Appellant, v. Harold M. BROWN, Attorney General of the State of Alaska, Respondent-Appellee. No. 86-3548. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 1, 1987. Decided Feb. 4, 1988. Richard G. Haggart, Birch, Horton, Bittner, Pestinger & Anderson, Anchorage, Alaska, for petitioner-appellant. Cynthia M. Hora, Asst. Atty. Gen., Anchorage, Alaska, Harold M. Brown, Atty. Gen., Juneau, Alaska, for respondent-appellee. Appeal from the United States District Court for the District of alaska. Before POOLE, FERGUSON and CANBY, Circuit Judges. POOLE, Circuit Judge: INTRODUCTION 1 The fifth amendment "guarantees ... the right of a person to remain silent unless he chooses to speak in the unfettered expression of his own will, and to suffer no penalty ... for such silence." Malloy v. Hogan, 378 U.S. 1, 8 , 84 S.Ct. 1489, 1493-94 , 12 L.Ed.2d 653 (1964). In Schmerber v. California, 384 U.S. 757 , 86 S.Ct. 1826 , 16 L.Ed.2d 908 (1966), the United States Supreme Court ruled that the fifth amendment protects an accused only from being compelled to testify against himself or otherwise…