No. 80-405 

IiJ TEE SUPREME COURT OF TI-IE STATE OF MOT.JTANA 

1983 

THE STATE OF MONTANA, 

Plaintiff and Appellant, 

-vsROBERT CHARLES JACKSON , 

Defendant and Respondent. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Joseph B. Gary, Judge presiding. 

ON REMAND FROM UNITED STATES SUPREME COURT 

For Appellant: 

Hon. Mike Greely argued, Attorney General, Xelena, 

Montana 

Sarah Power argued, Asst. Atty. General, Helena 

A. I~lichael Salvagni, County Attorney, Bozeman, Montana 

For Respondent: 

Goetz & Madden; Zames Goetz argued, Rozeman, Pqontana 

For Amicus Curiae: 

Mark Connell; Baldassin, Connell & Beers, Missoula, 

Montana (American Civil Liberties Union) 

-- - - - - . . - -- -- 

Submitted: May 31, 1983 

Decided : October 21, 1983 

Filed: OCT 2 i 1983 

-. -. - - Clerk 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of 

the Court. 

This case comes to us for the second time following 

remand by the United States Supreme Court. 

This case began when defendant, Robert Charles Jackson, 

was cha.rged with driving a motor vehicle while under the 

influence of alcohol, fourth offense, a misdemeanor, in the 

District Court of Gallatin County. During the course of 

prosecution, the District Court entered an order suppressing 

all evidence of Jackson's refusal to submit to a breathalyzer 

sobriety test. On appeal, this Court affirmed the District 

Court in a 4-3 decision. 

On application by the State, the United States Supreme 

Court granted certiorari, reviewed our decision, and entered 

the following order which we quote in pertinent part: 

"The petition for writ of certiorari is 

granted. The judgment is vacated and the 

case is remanded to the Supreme Court of 

Montana to consider whether its judgment 

is based upon federal or state 

constitutional grounds, or both, and, if 

its judgment is not based upon state 

constitutional grounds, for further 

consideration in light of South Dakota v. 

Neville, 459 U.S. , (1983) ." 

The factual background of this case commenced on June 

6, 1980, when Jackson was arrested by Bozeman police for 

driving under the influence of alcohol. At the police 

station, he was asked to submit to a breathalyzer test. He 

refused. This was recorded on videotape together with his 

performance of certain coordination tests. 

Jackson was charged with driving a motor vehicle under 

the influence of alcohol, fourth offense, in violation of 

section 61-8-401, MCA. He filed a motion in limine seeking 

suppression of all evidence of any license suspension 

resulting from tha.t refusal. The District Court granted 
suppression, apparently holding that part of Montana's 

implied consent statute permitting the admission of such 

evidence unconstitutional. 

On appeal, this Court in a split decision affirmed the 

District Court on the basis that such refusal was testimonial 

in nature and coerced; hence, admission of such evidence 

would violate Jackson's right against self-incrimination 

guaranteed by the Fifth Amendment to the United States 

Constitution and Article 11, Section 25, of the Montana 

Constitution. State v. Jackson (1981), 195 Mont. 185, 637 

P.2d 1. 

The Montana Attornev General filed a petition for writ 

of certiorari seeking a review of our decision by the United 

States Supreme Court. Thereafter, the United States Supreme 

Court issued an opinion in a South Dakota case holding that 

the Fifth Amendment protection against self-incrimination did 

not prohibit admission in evidence of a person's refusal to 

take a blood-alcohol sobriety test in a DUI prosecution under 

South Dakota's implied consent statute. South Dakota v, 

Neville (1983), 459 U.S. , 103 S.Ct. 916, 74 L.Ed.2d 748. 

Finally, the United States Supreme Court vacated our judgment 

in the instant case and remanded it to us for further 

consideration as heretofore set forth. 

On remand, we ordered supplemental briefing and heard 

oral argument on May 31, 1983. 

Two issues are presented for our consideration: 

1. Was our Jackson decision based on federal or state 

constitutional grounds, or both? 

2. If our Jackson decision was not based on state 

constitutional grounds, was it overruled by South Dakota v. 

Neville? ' 
The State contends that there are no a.dequate and 

independent state constitutional grounds supporting this 

decision. 

Court's ~ackson/ The State argues that our Jackson opinion 

rests on an an.alysis of federal cases construing the Fifth 

Amendment protection against self-incrimination and no 

reasons are given in the Jackson opinion for construing 

Montana ' s constitutional prohibitions against 

self-incrimination any differently. The State points to 

prior decisions of this Court holding that Montana's 

constitutional provision against self-incrimination affords 

no broader protection to the accused than does the Fifth 

Amendment in the United States Const.itution. 

Jackson contends that this Court in Jackson expressly 

held that its decision was based on state constitutional 

grounds as well as federal constitutional grounds. He a.rgues 

that this Court in Jackson gave reasons for according greater 

breadth to Montana's constitutional prohibition against 

self-incrimination than that in the federal constitution by 

its ana.lysis of cases from other states. Jackson buttresses 

his argument by pointing out references in Jackson to state 

constitutional considerations. 

The United States Supreme Court has addressed this 

question on numerous prior occasions to determine its 

authority to review a state court decision. It is well 

settled that the United States Supreme Court is the ultimate 

authority in interpreting provisions of the United States 

Constitution just as the state supreme court is the ultima-te 

authority in interpreting the provisions of its state 

constitution. A problem arises when it is unclear whether a. 

state decision is ba.sed on the United States Constitution or 

the state constitution, or both. Essentially, the United 
States Supreme Court has ruled that unless the state court 

opinion is based on adequate and independent state grounds, 

the United States Supreme Court has jurisdiction to review 

it. Michigan v. Long (1983), - U.S. , 103 S.Ct. 3469, 

77 L.Ed.2d 1201; South Dakota v. Neville, supra; Delaware v. 

Prouse (1979), 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660; 

Zacchini v. Scripps-Howard Broadcasting Co. (1977) , 433 U.S. 

Within this basic framework, the United States Supreme 

Court has developed more specific guidelines. Where the 

state supreme court "held as it did because it felt under 

compulsion of federal law as enunciated by this Court so to 

hold, it should be relieved of tha.t compulsion. It shou1.d be 

free to decide . . . these suits according to its own local 

law." Missouri ex rel. Southern R. Co. v. ~ayfield (1950), 

340 U.S. 1, 5, 71 S.Ct. 1, 95 L.Ed. 3, cited with approval. in 

Zacchini v. Scripps-Howard Broadcasting Co., supra. If the 

state court "felt compelled by what it understood to be 

federal constitutional considerations to construe . . . its 

own 1a.w in the manner it did," then the United States Supreme 

Court will not treat a normally a-dequate state ground as 

independent and its jurisdiction is clear. Delaware v. 

Prouse, 440 U.S. at 653. The essence of the principle 

applicable to resolution of the issue has recently (July 6, 

1983) been summarized in this manner: 

". . . Accordingly, when, as in this 

case, a state court decision fairly 

appears to rest primarily on federal law, 

or to be interwoven with the federal law, 

and when the adequacy and independence of 

any possible state law ground is not 

clear from the face of the opinion, we 

will accept as the most reasonable 

explanation that the state court decided 

the case the way it did because it 

believed that federal Law required it to 
do so. If a, state court chooses merely 

to rely on federal precedents as it would 

on the precedents of all other 

jurisdictions, then it need only make 

clear by a plain statement in its 

judgment or opinion that the federal 

cases are being used only for the purpose 

of guidance, and do not themselves compel 

the result that the court has 

reached. . ." Michigan v. Long, 103 

S.Ct. at 3476, 77 L.Ed.2d at 1214. 

Our original Jackson decision contained statements that 

to admit evidence of refusal to submit to a breatha-lyzer 

sobriety test would violate the Fifth Amendment privilege 

against self-incrimination and Montana's privilege against 

self-incrimination guaranteed by Article 11, Section 25 of 

the Montana Constitution. The opinion indicates that the 

basis of that ruling was that such refusal is testimonial in 

nature and coerced, thus falling within the ambit of 

protection against self-incrimination. 

As we read the Jackson opinion, tha.t conclusion is 

reached primarily by an analysis of federal cases 

interpreting the Fifth Amendment protection against 

self-incrimination. Schmerber v. California (1966), 384 U.S. 

757, 86 S.Ct. 1826, 16 L.Ed.2d 908, is distinguished on the 

basis that a blood sample is real, physical evidence of a 

nontestimonial nature beyond Fifth Amendment protection. 

Doyle v. Ohio (1976), 426 U.S. 610, 96 S.Ct. 2240, 49 ~.~d.2d 

91, was cited for the proposition that a person's refusal to 

take a sobriety test is an overt communication of that 

person's thoughts, compelled by the police, from which it was 

reasoned that it was protected against self-incrimination by 

the Fifth Amendment; a statement follows that under our 

constitution, the privilege against self-incrimination of an 

accused person's thoughts, whether by acts or words spoken, 

and the fact it does not extend its protection to forbid the 
compulsory exhibition of physical characteristics does not 

nullify the protection it does provide; Hoffman v. United 

States (1951), 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118, and 

Murphy v. Waterfront Comm'n (1964), 378 U.S. 52, 84 S.Ct. 

1594, 12 L.Ed.2d 678, were cited as support for a liberal 

construction of the Fifth Amendment in favor of the accused 

followed by a statement that we must also liberally construe 

Article 11, Section 25, of the Montana Constitution. 

A number of state decisions are cited as examples of 

state rulings that the admission of evidence of a refusal to 

take a sobriety test violates the privilege against 

self-incrimination. Of the state cases cited, four are based 

on interpretation of the Fifth Amendment to the United States 

Constitution, one is based on both federal and state 

constitutions, and two are based exclusively on their own 

state constitutions (State v. Andrews (Minn. 1973), 212 

N.W.2d 863, and Application of Baggett (Okla. 1974), 531 P.2d 

1011). No reasons are given in Jackson why we should 

interpret our own constitution the same as Minnesota and 

Oklahoma interpreted theirs, nor does the opinion contain any 

analysis or reason for extending the scope of Montana's 

constitutional protection against self-incrimination beyond 

that afforded by its Fifth Amendment counterpart in the 

federal constitution. The Jackson opinion ignores prior 

rulings by this Court that the Montana constitutional 

guarantee of the privilege against self-incrimination affords 

no broader protection to an accused than does the Fifth 

Amendment (State v. Armstrong (1976), 170 Mont. 256, 552 P.2d 

616) and that the opinion of the United States Supreme Court 

delineates the maximum breadth of the privilege against 
self-incrimination in Monta.na (State v. in ley (19771, 173 

Mont. 162, 566 P.2d 1119). 

In sum, we read the Jackson opinion as based primarily 

on United States Supreme Court decisions interpreting the 

Fifth Amendment to the United States Constitution. Any 

reference to the state constitution is not independent of the 

federal constitutional decisions interpreting the Fifth 

Amendment. No reasons are given nor an analysis made for 

extending our state constitutional protections against 

self-incrimination beyond that afforded by its federal 

counterpart. The following language of the United States 

Supreme Court in a Michigan case is equally applicable to our 

Jackson opinion: 

". . . The references to the state 

constitution in no way indicate that the 

decision below rested on grounds in any 

way independent from the state court ' s 

interpretation of federal law. Even if 

we accept tha.t the Michigan constitution 

has been interpreted to provide 

independent protection for certain rights 

also secured under the Fourth Amendment, 

it fa.irly appears in this case that the 

Michigan Supreme Court rested its 

decision primarily on federal law." 

Michigan v. Long, 103 S.Ct. at 3477, 77 

L.Ed.2d at 1216. 

We now reconsider our Jackson decision in the light of 

South Dakota v. Neville, supra. In that case ~eville was 

stopped by two Madison, South Dakota, police officers after 

they saw him fail to stop at a stop sign. The officers asked 

him for his driver's license and asked him to get out of the 

car. As Neville left the car, he staggered and fell against 

the car to support himself. The officers smelled alcohol on 

his breath. Neville did not have a driver's license and 

informed the officers that it was revoked after a previous 

driving-while-intoxicated conviction. The officers asked him 
to touch his finger to his nose and to walk a straight line. 

When Neville failed these field sobriety tests, he was placed 

under arrest and read his Miranda rights. He a.cknowledged 

that he understood these rights and agreed to talk without a 

lawyer present. Reading from a printed card, the officers 

then asked Neville to submit to a blood-alcohol test and 

warned him that he could 1-ose his license if he refused. 

Neville refused to take the test stating, "I'm too drunk, I 

won't pass the test." The officers again read the request to 

submit to a test and then took Neville to the police station, 

where they read the request to submit a third time. Neville 

continued to refuse to take the test, again saying he was too 

drunk to pass it. 

South Dakota law provides that refusal to submit to a 

blood-alcohol test "may be admissible into evidence at the 

trial." Another South Dakota statute specifically provides 

that evidence of refusal to submit to a chemical analysis of 

blood, urine, breath or other bodily substance "is admissible 

into evidence" at a trial for driving under the influence of 

alcohol and tha.t a person "may not claim privilege against 

self-incrimination with regard to admission of refusal to 

submit to chemical analysis." 

The trial court granted suppression for three reasons: 

(1) the South Dakota statute allowing evidence of refusal 

violated Neville's federal constitutional rights; (2) the 

officers failed to advise Neville that the refusal could be 

used against him at the trial; and, (3) the refusal was 

irrelevant to the issue at the trial. The South Dakota 

Supreme Court affirmed the suppression on the ground that the 

statute allowing introduction in evidence of the refusal 

violated the federal and state privilege against 
self-incrimination. The South Dakota Supreme Court reasoned 

that the refusal was a communicative act involving Neville's 

testimonial capacities and that the state compelled this 

communication by forcing Neville "to choose between 

submitting to a perhaps unpleasant examination and producing 

testimonial evidence against himself." State v. Neville 

(S.D. 1981), 312 N.W.2d 723, 726. 

The United States Supreme Court granted certiorari and 

upon review reversed the judgment of the South Dakota Supreme 

Court. The United States Supreme Court held that the 

admission in evidence of a defendant's refusal to submit to a 

blood-alcohol test did not offend his Fifth Amendment right 

against self-incrimination. The Court reasoned that a 

refusal to take such a test after a police officer has 

lawfully requested it is not an act coerced by the officer 

and thus is not protected by the privilege against 

self-incrimination. The Court reasoned that the offer of 

taking the test is clearly legitimate and becomes no less 

legitimate when the state offers a second option of refusing 

the test with the attendant penalties for making that choice. 

The United States Supreme Court went on to hold that it 

was not fundamentally unfair or in violation of due process 

to use Nevil-lets refusal to take the blood-alcohol test as 

evidence of guilt, even though the police failed to warn him 

that the refusal could be used against him at the trial. The 

court held that such failure to warn was not the sort of 

implicit promise to forego use of evidence that would 

unfairly "trick" Neville if the evidence were later offered 

against him at the trial. 

Montana's implied consent law provides in pertinent 

part that any person who operates a motor vehicle on the 
public highways shall be deemed to have given his consent to 

a chemical test of his blood, breath or urine if arrested by 

an officer for driving a motor vehicle while under the 

influence of intoxicating liquor. Section 61-8-402(1), MCA. 

The statute further provides that if he refuses, no test 

shall be given but that his driver's license shall be 

suspended for sixty days under certain circumstances. 

Section 61-8-402 (3), MCA. The implied consent law also 

provides that proof of refusal to submit to the test is 

admissible in evidence upon his tria.1 for DUI. Section 

61-8-404, MCA. 

In the instant case, Jackson is alleged to have refused 

to submit to a breathalyzer sobriety test. The United States 

Supreme Court has clearly held that the admission in evidence 

of a defendant's refusal to submit to a blood-alcohol test in 

a DUI prosecution does not violate the defendant's Fifth 

Amendment right against self-incrimination. Since Montana's 

implied consent law covers a breath test as well as a 

blood-alcohol test, as does South Dakota's, the Neville case 

is squarely applicable to Jackson and compels reversal of the 

District Court's suppression of evidence of refusal on Fifth 

Amendment grounds. 

The Neville decision likewise forecloses defendant's 

claim that the Montana statute offends Jackson's right 

against self-incrimination under Montana's Constitution, 

Article 11, Section 25. The Fifth Amendment to the United 

States Constitution provides, " [nlo person . . . shall be 

compelled in any criminal case to be a witness against 

himself . . ." while its counterpart in the Montana 

Constitution provides, "[nlo person shall be compelled to 

testify against himself in any criminal proceeding." The 
language used in the two constitutions is substantially 

identical and affords no basis for interpreting Montana's 

prohibition against self-incrimination more broadly than its 

federal counterpart. Nor do we find any indication in the 

proceedings of Montana's Constitutional Convention that would 

indicate that the framers intended to grant any broader 

protection thereunder than that contained in the Fifth 

Amendment to the United States Constitution. 

Moreover, this Court has expressly held to the 

contrary. "The Montana constitutional guaranty affords no 

greater protection than that of the Federal constitution." 

State v. Armstrong, supra, 552 P.2d at 619. A year later we 

relied on this statement in Armstronq and further held, 

"[tlhe opinions of the United States Supreme Court, 

therefore, delineate the maximum breadth of the privilege 

against self-incrimination in Montana." State v. Finley, 

supra, 566 P.2d at 1121. 

Accordingly, we hold that the Montana constitutional 

prohibition against self-incrimination is not offended by the 

admission in evidence of defendant's refusal to submit to a 

breathalyzer sobriety test pursuant to section 61-8-404, MCA. 

wedo notreach the question of whether evidence of 

defendant's license suspension is admissible. Although that 

issue was included in defendant's motion in limine, it was 

neither briefed nor argued in the District Court nor in this 

Court on appeal. 

The order of the District Court suppressing evidence of 

Jackson's refusal to submit to a breathalyzer sobriety test 

is reversed. This cause is remanded to the District Court of 

Gallatin County for further proceedings. 
We concur: 

Justices 
Mr. Justice Frank B. Morrison, Jr. specially concurring. 

I concur in the result. Originally my vote was to find 

the subject statute unconstitutional as a violation of 

Jackson's right against self-incrimination. At that time my 

vote was not based upon independent State grounds but rather 

upon my own interpretation of the Fifth Amendment to the 

United States Constitution and Article 11, Section 25 of the 

Montana Constitution. Furthermore, I tried to determine what 

the United States Supreme Court would do when confronted with 

the question. 

My feeling is that where language in the Montana State 

Constitution is identical to language in the United States 

Constitution, we should feel bound by determinations made by 

the United States Supreme Court in interpreting that 

Language. Therefore, though I disagree with the decision of 

the United States Supreme Court, my vote is to follow their 

interpretation. 
Mr. Justice John C. Sheehy, dissenting: 

I dissent. 

In our original opinion in this case, we had examined 

the rights guaranteed our citizens under state constitutional 

principles, in the light of federal constitutional decisions. 

Now the United States Supreme Court has interjected itself, 

commanding us in effect to withdraw the constitutional rights 

which we felt we should extend to our state citizens back to 

the limits proscribed by the federal decisions. Effectively, 

the United States Supreme Court has intruded upon the rights 

of the judiciary of this sovereign state. 

Instead of knuckling under to this unjustified expansion 

of federal judicial power into the perimeters of our state 

power, we should show our judicial displeasure by insisting 

that in Montana, this sovereign state can interpret its 

constitution to guarantee rights to its citizens greater than 

those guaranteed by the federal constitution. 

I agree with Justice Stevens, who dissented in Michigan 

v. Long (Decid.ed July 6, 1983) No. 82-256, U.S. 

We can pa.ra.phrase what his majority has done to Montana by 

quoting from his dissent: 

"In this case the State of [Montana] has arrested 

one of its citizens and the [Montana] Supreme Court 

has decided to turn him loose. The respondent is a 

United States citizen as well as a [Manta-na] 

citizen, but since there is no claim that he has 

been mistreated by the State of [Montana], the 

final outcome of the state processes offended no 

federal interest whatever. [Montana] simply 

provided greater protection to one of its citizens 

than some other State might provide or, indeed, 

than this Court might require throughout the 

country." Slip opinion at 4. 

What Justice Stevens is saying, and I am glad to echo, 

is that the United States Supreme Court has no business 

contravening the final decisions of a state judiciary where 
no federal right guaranteed to all citizens has heen 

offended. Constitutional rights are guaranteed to persons, 

not states. Here the State has complained to the United 

States Supreme Court because its own state judiciary has 

protected the constitutional rights of one of its citizens, 

and extended those rights beyond what the State perceives as 

the federal limits. It has always been the rule that the 

states could extend federal constitutional rights past the 

boundaries of the federal limitations as defined by the 

federal judiciary, but could not delimit such constitutional 

rights to a lesser degree than would be permitted under 

federal rules. In other words, the United States Supreme 

Court historically has intervened to make sure that persons 

who seek to vindicate federal rights have been fairly heard. 

Historically, as Justice Stevens pointed out, the United 

States Supreme Court reviewed the findings of fact of a state 

court, only "where a federal right has been denied." Slip 

opinion at 5. 

No federal rights of a citizen were denied in our 

original opinion in this case. 

The general public may have a perception that courts 

operate in a degree of permanency, interpreting constitutions 

and laws unchangingly. That perception is most misleading. 

The shades of opinion and the quality of a court's 

interpretations are transient, depending in large measure 

upon the changing personnel making up the court, and the 

ability of its members to withstand the tides of public 

opinion. The most illustrative example of this transiency is 

the United States Supreme Court itself. Its vagaries of 

opinions in the fields of civil rights, human rights, 

education, and the rights of states in the past 20 years must 
be astounding to anv student of judicial history. The result 

of the decision in Michigan v. Long will be, as Justice 

Stevens said, a swelling increase in the number of cases the 

United States Supreme Court will be called on to interpret, 

where states complain that their own judiciaries have granted 

greater rights than the federal decisions have allowed. The 

great likelihood is that the United States Supreme Court must 

in the future reverse its position and adopt a stance that 

adequate state grounds for its decision are independent of 

federal grounds unless it clearly appears from the state's 

opinion otherwise. We should at least attempt to force the 

United States Supreme Court to come to that proper stance. 

If a majority of this Court had the will to press the 

issue, we cou1.d put the question to the United States Supreme 

Court four-square, that this State judiciary has the right to 

interpret its constitution in the light of federal decisions, 

and to go beyond the federal decisions in granting and 

preserving rights to its citizens under its state 

constitution. That is the route I would take in this case. 

Justice 
Mr. Justice Daniel J. Shea, dissenting: 

I join in Justice Sheehy's dissent and add my own 

dissent to the decision of the majority to undo what we 

declared the law to be in State v. Jackson (1981) , 195 Mont. 

(In this dissent, I refer to our 1981 

Jackson decision as Jackson - I and to the present decision a.s 

Jackson - 11.) I dissent not because I believe opinions I have 

authored are cast in granite, but because the majority here 

has ignored the full import of our decision in Jackson - I, the 

import of which they fully recognized in their dissent. We 

held that not only were the defendant's constitutional rights 

violated under the Fifth Amendment to the United States 

Constitution, but also and as an independent ground, [that 

defendant's rights were violated under the self-incrimination 

of Art. 11, § 25 of our own state constitution.] In the 

guise of compliance with the mandate of the United States 

Supreme Court's order of remand vacating our judgment, the 

majority has simply rewritten Jackson to comport with its own 

views as to interpreting our state constitution. In doing 

so, the majority has delegated to the United States Supreme 

Court our duty to interpret our constitution. This 

constitutes an abdication of our duty to interpret our own 

constitution. 

Before launching into the body of my dissent, I detour 

here to comment on the current trends to crack down on drunk 

driving. Those trends are laudable and every effort to do so 

is a step in the right direction--provided that no 

constitutional rights are violated in the process. In South 

Dakota v. Neville (1983), - U.S. , 103 S.Ct. 916, 74 

L.Ed.2d 748, the United States Supreme Court referred. to the 
carnage of our highways as a result of drunk driving. No one 

can deny the tragic statistics relating to drinking and 

driving. However, the criminal law does not have to be 

enforced in such a manner as to ca.use a. head-on confrontation 

with either the Fifth Amendment or Art. 11, 5 25 of our own 

constitution. Driving is a privilege, and tha.t privilege can 

be revoked. I see nothing unconstitutional in a law 

providing that if a driver (on reasonable probable cause) is 

asked by a law officer to give a blood alcohol sample or a 

breath sample and refuses to do so, his license can be 

suspended. The refusal can be the triggering event for 

suspension. However, if the State chose, it could still 

proceed against the defendant on a charge of driving while 

intoxicated. In the criminal proceeding, however, the State 

should not be able to use the defend.ant1s refusal against him 

as a tacit admission that his refusal was based on his belief 

that he could not pass the test. That, in my judgment, 

violates at least Art. 11, 5 25 of our own constitution, and. 

that is what I thought we held in Jackson - I. 

As the author of Jackson - I, I clearly made a mistake, 

for I did not recognize the extent to which the United States 

Supreme Court stood ready to intrude on the judicial affairs 

of this state in interpreting our own constitution. However, 

the remand order failed to analyze our decision, for to have 

done so would have been to recognize that we did indeed rely 

on Art. 11, 5 25, as an independent ground of decision. 

Instead, the Supreme Court remanded the case to this Court to 

determine whether our decision "was based upon federal or 

state constitutional grounds, or both,. . ." (Emphasis 

added. ) A reading of our decision should have told an 

objective United States Supreme Court that our decision was 
based - on - both and tha.t a decision based on our own 

constitution was sufficient for that Court to deny 

certiorari. 

In his dissent from the majority's remand order, 

however, Justice Stevens did take the time to analyze this 

Court's decision in Jackson - I, and he was eminently satisfied 

that we clearly based our decision on an independent state 

ground by relying on Art. 11, S 25 of our own constituti-on. 

I quote Justice Steven's dissent in full so that the reader 

can make his or her own determination of whether this Court 

reached its decision on an independent sta.te ground. 

"Justice Stevens, dissenting. 

"In its opinion explaining its holding that the 

defendant's refusal to submit to a breathalizer 

sobriety test is inadmissible, the majority of the 

Supreme Court of Montana stated, in part: 

"'We hold that such refusal is testimonial in 

nature and that to admit evidence of the fact of 

refusal would violate the defendant's Fifth 

Amendment privilege as guaranteed by the United 

States Constitution, and would further violate 

defendant's privilege as guaranteed by Art. 11, S 

25 of the Montana Constitution. ' App. to Pet. for 

Cert. A-2. 

"After analyzing the federal constitutional 

question in the light of this Court's opinion in 

Schmerber - v. Californ-ia, 384 U.S. 757, the court 

continued: 

"'The issue is also controlled by Art. 11, S 25 of 

our own constitution, which provides that "no 

person shall be compelled to testify against 

himself in a criminal proceeding." The issue 

involves a communication that is testimonial in 

nature, and we must resolve the issue by applying 

Art. 11, S 25. Clearly, to permit evidence of 

defendantt s refusal to take the breathalyzer test 

would violate not only the United States 

Constitution, but also our own constitution.' 

" 'In State v. Finley (1977) , 173 Mont. 162, 566 

P.2d 1119, we held that a defendant's privilege 

against self-incrimination was not violated by 

admitting into evidence a videotape recording of 

his post-arrest words and actions. We decided that 

the tape had not been introduced for the 

incriminating content of the words uttered by the 
defendant, but rather for the purpose of aiding the 

jury in understanding the testimony of the 

witnesses who had observed the defendant's unsteady 

walk and his slurred speech after his arrest. We 

specifically noted that the videotape did not 

contain incriminating responses to interrogation by 

the police. But the same situation does not exist 

here. It is obvious that defendant's refusal is 

inherently self-incriminating because it carries a 

strong inference of guilt--the prosecutor would 

surely argue that defendant's refusal to take the 

test was prompted only by his knowledge that the 

test results would reveal his intoxication, and 

therefore incriminate him.' 

"'We hold under our own constitution, that if a 

communication of refusal, whether written, verbal, 

or otherwise, involves the defendant's 

consciousness of the facts and the operation of his 

mind in expressing it, the communication is 

testimonial in nature. A defendant's silence or 

negative reply to an officer's request which calls 

for an immediate reply is clearly an overt 

communication of the defendant's thoughts in 

response to the request. Doyle v. Ohio (1976), 426 

U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91. It is the 

act of refusal that is pertinent and suggestive of 

guilt, rather than the way in which it is 

communicated. Under our constitution, the 

privilege against self-incrimination forbids any 

compulsory communica.tion of an accused person ' s 

thoughts, whether by acts or words spoken, and the 

fact that it does not extend its protection to 

forbid the compulsory exhibition of physical 

characteristics does not nullify the protection it 

does provide.' App. to Pet. for Cert. A-8-A-LO. 

"Consistent with the views I expressed + in dissent 

in South Dakota v. Neville, U.S. -1 - 

(1983) , I believe the statementr~ have quoted are 

sufficient to demonstrate that the judgment of the 

Montana Supreme Court rests on an adequate and 

independent state ground and that this Court is 

therefore without jurisdiction to vacate its 

judgment. I therefore respectfully dissent." 

In unfortunate statements in two previous cases this 

Court declared that the Montana constitutional provision 

against self-incrimination would march lock-step with 

interpretation given to the Fifth Amendment clause of the 

United States Constitution. State v. Finley (1977), 173 

Mont. 162, 566 P.2d 1119; State v. Armstrong (1976), 170 

Mont. 256, 552 P.2d 616. Although the ma.jority in Jackson - I1 

now again rely on these sta.tements, they recognized full well 
in dissenting to Jackson - I that the intent of the majority 

was to give greater protection in Montana than what the 

federal constitution provided. The dissent states in part: 

". . . It [the majority holding] extends the 

breadth of Montana's constitutional provision 

beyond that afforded by the United States 

Constitution and overrules sub silento this Court's 

own interpretation of Montana's own interpretation 

of ~ontana' s privilege against self-incrimination 

[obviously referring to the statements in Armstronq 

and Finley that Montana's constitutional provision 

against self-incrimination had only the meaning 

that the United States Supreme Court chose to give 

to it.]" 195 Mont. at 196, 637 P.2d at 7. 

There, the dissenters recognized tha.t Armstrong and 

Finley had been overruled to the extent that we would let the 

United States Supreme Court interpret Art. 11, S 25 of our 

own constitution for us. But the present majority in Jackson 

11, now sings a different tune. They conclude, without 

alluding to their own admissions in Jackson - I, our 

constitutional provision against self-incrimination must 

derive its sole meaning from decisions of the United States 

Supreme Court interpreting the Fifth Amendment. 

Before I became a member of this Court and since I have 

been a member of this Court, I have been constantly bothered 

by the inconsistency of this Court in its decisions, but 

particularly so in the administration of the criminal law 

where even more consistency is required because of the 

underlying life and liberty considerations involved with each 

case. The majority opinion here demonstrates once again this 

inconsistency and our unstated policy to treat each criminal 

appeal on an ad hoc basis. This unstated policy undermines 

the integrity of the appellate process and as a matter of 

judicial policy is just plain dangerous. 

This result could not have been reached--in this 

case--if the United States Supreme Court had not arrogated to 

itself the powers that should, in our federal system, belong 
only to the states. I once again state that I agree with the 

concerns of Justice Sheehy in his dissent, for his concerns 

are real. 

The danger of this intrusionary policy is fully 

exemplified by the arrogance of a concurring opinion in 

Florida v. Casal (Fla.S.Ct., June 17, 1983), No. 81-2318, 

slip op. There the United States Supreme Court let stand a 

decision of the Florida Supreme Court that appeared to have 

relied on a sta.te constitutional provision and state statute 

in reaching its decision. But the Chief Justice of the 

United States Supreme Court did not agree with the decision 

of the Florida. Supreme Court and suggested that the United 

States Supreme Court was the sole repository of judicial 

wisdom and rationality. 

In the final paragraph of this con.curring opinion, the 

Chief Justice expressed an attitude that fully reflects the 

judicial power that he would arrogate for the United States 

Supreme Court: 

"With our dual system of state and federal laws, 

administered by parallel state and federal courts, 

different standards may arise in different areas. 

But when state courts interpret state law to 

require more than the Federal Constitution 

requires, the citizens of the state must be aware 

that they have the power to amend state law to 

ensure rational law enforcement. The people of 

Florida have now done so with respect to Art. 1, 5 

12 of the State Constitution; they have it within 

their power to do so with respect to Florida 

Statute 5 327.56 [the statute involved that was 

interpreted by the Florida Supreme Court contrary 

to what the Chief Justice believed its 

interpretation should be. I . " Florida v. casal? 

supra, at 3 (Burger, J., concurring) (Emphasis 

added. ) 

This philosophy appears to have permeated a majority of 

the members of that Court and I suggest that this philosophy 

is what led to the remand in this case. The Chief Justice 

would have state governments amend state constitutions and 
statutes to march lock-step with the judicial pronouncements 

of the United States Supreme Court. It appears that this 

philosophy is contagious. The majority here has declared 

that Art. 11, S 25, of our own constitution has only the 

meaning that the United States Supreme Court chooses to give 

it. 

I suggest that the provisions of our own constitution do 

have meaning independent of the interpretations given to the 

United States Constitution, and that so long as we do not 

deny rights guara.nteed by the United States Constitution, we 

can and should, where the situation arises, interpret our own 

constitution to give more rights than those granted by the 

United States Constitution. But the majority has abdicated 

that responsibility by holding that provisions of our 

constitution "substantially identical" (whatever that means) 

with provisions of the United States Constitution can get 

their meaning only from the United States Supreme Court. It 

seems the majority has adopted the philosophy suggested by 

Chief Justice Burger in Florida v. ~asal? and would permit 

the United States Supreme Court to tell us what our state 

constitution means. 

Based on these considerations, I would reaffirm our 

opinion in Jackson - I, an opinion that not only attempted to 

interpret the United States Constitution, but also relied on 

a state ground in affirming the trial court's order. 

A