FILED

January 29,

1996

Cecil Crowson, Jr.

Appellate Court Clerk

FOR PUBLICATION

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

STATE OF TENNESSEE, (

(

 Plaintiff-Appellee, (

(

(

( Putnam Criminal

(

v . ( Hon. John A. Turnbull,

( Judge

(

( No. 01S0l-9503-CC-00036

(

BILLY D. FRASIER, (

(

 Defendant-Appellant. (

D I S S E N T I N G O P I N I O N

I dissent from the majority's holding that a

person arrested for driving under the influence of an

intoxicant will be denied the right to consult with counsel

prior to submitting to a breath test, regardless of the

circumstances, and also from the majority's holding that the

defendant's right against self-incrimination would not be

violated by the admission of his refusal to submit to the

breath test as evidence of intoxication. 
1

"Any person who drives any motor vehicle in the state

of Tennessee shall be deemed to have given consent to a test

for the purpose of determining the alcoholic or drug content

of that person's blood. . . ." Tenn. Code Ann. § 55-10-

406(a)(1) (1993) (amendment codified at Tenn. Code Ann. § 55-

10-406 (Supp. 1995)). "[R]efusal to submit to such test will

result in the suspension of the driver's operator's license.

. . ." Tenn. Code Ann. § 55-10-406(a)(2).

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On the first issue, the majority paints with broad

strokes and reaches a conclusion which unnecessarily

compromises the right of an accused to seek legal advice. I

agree that there is no constitutional prohibition against

requiring a person arrested for DUI to submit to the

statutory test. 1 However, the accused should be permitted to

consult with counsel if the consultation does not

substantially impede the testing process. The majority's

opinion apparently would not allow a person arrested for DUI

to ask the advice of a lawyer who might be seated in the

vehicle with the arrested driver or to use a car telephone to

call a lawyer while waiting for the test to be administered. 

See State v. Sensing , 843 S.W.2d 412, 416 (Tenn. 1992) (The

breath testing device requires that the motorist be observed

for 20 minutes prior to taking the test.).

The majority quotes extensively from Sites v.

State , 481 A.2d 192 (Md. 1984), which held that a drunk

driving suspect has a due process right to communicate with

counsel, where doing so will not impair the accuracy of the
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test. The majority concludes, however, that a Sites -type

rule would be difficult to apply, thus denying the accused a

fundamental right not out of necessity but for the mere

convenience of the police. I fail to recognize the

difficulty in applying a rule that would allow the accused to

attempt to contact an attorney during the time interval the

arresting officer is required to observe the defendant before

performing the breath test. See State v. Sensing , 843 S.W.2d

at 416 (holding that "the testing officer must be able to

testify . . . that the motorist was observed for the

requisite 20 minutes prior to the test. . ."). Such a rule,

in which the burden would be on the defendant to show that

the time needed to contact his lawyer would not have delayed

the test, would properly balance the State's interest in

enforcing the law and an arrested person's due process right

to counsel.

With regard to the evidence issue, I would hold

that the privilege against self-incrimination guaranteed by

Article 1, Section 9 of the Tennessee Constitution prohibits

the introduction of evidence that the defendant refused to

take the blood or breath test. Article I, Section 9

provides: "That in all criminal prosecutions, the accused .

. . shall not be compelled to give evidence against himself." 

The majority concludes that admission into evidence of the
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defendant's refusal to submit to the test would not violate

his right against self-incrimination, because the refusal was

not evidence of a testimonial or communicative nature. The

majority finds the defendant's "refusal of the test was

functionally the same as if he had submitted to the test." 

Majority Opinion at _____ [slip op. at p. 12]. The majority

does not recognize the significant distinction between the

results of the test and the refusal to take the test. The

majority, quoting South Dakota v. Neville , 459 U.S. 553, 563-

64 (1983), says, "Nor is this a case where the State has

subtly coerced respondent into choosing the option that it

had no right to compel, rather than offering a true choice." 

Majority Opinion at _____ [slip op. at 10]. Legal sophistry

aside, the coercion is more than subtle, it is blatant. The

State gives the accused two choices - take the test and

incriminate himself or refuse to take the test and

incriminate himself. Making and declaring that choice is

compelled evidence that incriminates. It is similar to

compelling a handwriting sample. As stated in State v.

Harris , 839 S.W.2d 54, 80 (Tenn. 1992) (Reid, C.J.,

dissenting):

It is not within the accused's power to

change his fingerprints, hair, breath or

blood. But a handwriting exemplar

requires the truthful participation of

the accused if it is to possess any

evidentiary value. The privilege
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against self-incrimination resulted from

attempts to extract from a person's lips

a true statement concerning his guilt

and thereby to supply the needed proof

against himself.

In this case, the statement that the State obtains from the

defendant and uses as evidence of his guilt is "I refuse to

take the test because I expect it would show evidence of

intoxication." 

The issue was put succinctly in People v. Hayes ,

235 N.W.2d 182, 184-85 (Mich. Ct. App. 1975), where the court

held:

[T]he admission of a defendant's refusal

to submit to an intoxication test would

render nugatory the choice which the

statute provides him . . . . He can

either submit to a test the results of

which could create a virtually

irrefutable presumption of guilt against

him, or he can refuse the test and suffer

the revocation. If the fact that the

defendant has chosen not to submit to a

test can be placed before the jury as an

inference of his guilt, then he will be

put in the position of having to risk

providing evidence for the prosecution by

submitting to the test or of certainly

providing it by refusing to submit. It

would be fundamentally unfair to put a

defendant in such a "damned if he does,

damned if he doesn't" position. The

Legislature provided a definite choice,

and we cannot render a decision which

would make that choice an illusory one.
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In Opinion of the Justices to the Senate , 591

N.E.2d 1073 (Mass. 1992), the Supreme Judicial Court of

Massachusetts properly and realistically analyzed the effect

of a similar constitutional provision on a similar statute. 

That court held that a proposed statute, making a defendant's

refusal to submit to a blood or breath test admissible as

evidence, would violate the state constitutional privilege

against self-incrimination. The court found that refusal

evidence would be testimonial in nature and would compel the

accused to furnish evidence against himself. The

Massachusetts constitutional privilege against selfincrimination is similar to Tennessee's in that it provides: 

"No subject shall . . . be compelled to accuse, or furnish

evidence against himself." Id. at 1076 n. 5. Regarding the

testimonial nature of refusal evidence, the Court stated:

 The distinction between real or

physical evidence and testimonial or

communicative evidence is not easily made

in every case. Courts which have

concluded that refusal evidence was not

testimonial have done so by justifying

its relevance on an issue not essential

to the prosecution's case, see State v.

Pineau , 491 A.2d 1165 (Me. 1985); State

v. Willis , 332 N.W.2d 180 (Minn. 1983),

to explain the lack of test result

evidence, or by concluding that the

refusal evidence may be introduced

because test results are admissible; Hill

v. State , 366 So. 2d 318 (Ala. 1979). It

does not logically follow, however, that,

because test results are not testimonial,

refusal evidence falls in the same
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category. In the ordinary case a

prosecutor would seek to introduce

refusal evidence to show, and would argue

if permitted, that a defendant's refusal

is the equivalent of his statement, "I

have had so much to drink that I know or

at least suspect that I am unable to pass

the test." See Williford v. State , 653

P.2d 339, 342-343 (Alaska. Ct. App.

1982). An involuntary statement to that

effect by the defendant could not be used

against him. . . . It follows,

therefore, that evidence of a person's

thought process, if offered to show that

the person had doubts about his ability

to pass the test, would be testimonial. 

Based on this analysis, evidence of a

refusal to submit to a requested

breathalyzer test is testimonial in

nature.

Id. at 1077.

Regarding whether refusal evidence is compelled,

the Court stated:

 Some courts have reasoned that

refusal evidence may be used because

their analogous statutes do not compel

refusal, but rather seek only to

encourage taking the test. Such statutes

do, however, compel the accused to choose

between taking the test and incurring a

penalty. There is compulsion, therefore,

on the accused to choose between two

alternatives, both of which are capable

of producing evidence against him. The

proposed statute, therefore, uses the

threat of adverse testimonial evidence as

a coercive tool to compel submission to a

breathalyzer test. The accused is thus

placed in a "Catch-22" situation: take

the test and perhaps produce potentially
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incriminating real evidence; refuse and

have adverse testimonial evidence used

against him at trial. Although some have

said that the act of refusal is not a

self-accusation, South Dakota v. Neville ,

459 U.S. 553, 561 n. 11, 562 n. 13, 103

S. Ct. 916, 921 n. 11, 922 n. 13, 74 L.

Ed. 2d 748 (1983), in our view it is

simply wrong to conclude that refusal

evidence used in the manner proposed is

not evidence furnished by the accused. 

Therefore, such refusal evidence is both

compelled and furnishes evidence against

oneself.

Id. at 1078.

For these reasons, I would hold that admission of

evidence of the defendant's refusal to submit to the test

would violate the Article I, Section 9 privilege against

self-incrimination. 

_____________________________

Reid, J.