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Farmer v. Commonwealth
Citations: 10 Va. App. 175; 390 S.E.2d 775; 6 Va. Law Rep. 1958; 1990 Va. App. LEXIS 60Docket: No. 0532-88-3
Court: Court of Appeals of Virginia; April 10, 1990; Virginia; State Appellate Court
Michael Larry Farmer was convicted in a bifurcated jury trial for driving under the influence (DUI) as a third or subsequent offense and for driving after being declared an habitual offender. He appealed the trial court's admission of evidence regarding his prior DUI convictions and his refusal to perform field sobriety tests. The court upheld the admission of prior DUI convictions, stating they are relevant to proving the substantive offense of DUI within the context of a third or subsequent offense. However, it found error in admitting evidence of Farmer's refusal to take field sobriety tests. The incident leading to the arrest occurred when Deputy Sheriff Hoback recognized Farmer driving without a valid license and observed signs of intoxication, including slurred speech and a strong odor of alcohol. The court clarified that while prior traffic records, including DUI offenses, should generally be considered only during the sentencing phase to prevent prejudice, they are admissible in the guilt phase for cases classified as third or subsequent offenses under the law. Evidence of prior DUI convictions is admissible during the guilt phase of a trial for a third or subsequent DUI offense under Code 18.2-266 and 18.2-270, contrary to Farmer's argument. Prior DUI convictions are distinct from a driver's traffic record, which includes various moving violations and license suspensions as defined by Code 46.2-943. In Farmer's case, the Commonwealth presented evidence of his prior DUI convictions from 1982, 1985, and 1986 at the guilt stage, while his broader traffic record was introduced later at sentencing. This approach aligns with Code 46.2-943, which restricts the introduction of entire traffic records during the guilt phase of a bifurcated trial. The Commonwealth was required to prove prior DUI convictions to establish the elements of the charge against Farmer, as the arrest warrant specified he was operating a vehicle while intoxicated as a third or subsequent offense within five years. The jury was instructed that to convict Farmer, it needed to find he was driving under the influence and had two or more prior DUI convictions within the past five years. Without admitting evidence of these prior convictions, the Commonwealth could not meet its burden of proof or properly instruct the jury on the charge. Thus, the trial court correctly admitted evidence of Farmer's prior DUI convictions independently of his traffic record, confirming that such evidence is necessary for proving a subsequent DUI offense under the relevant codes. Farmer contends that his constitutional right against self-incrimination was violated when the trial court allowed evidence of his refusal to take field sobriety tests. This issue, novel in Virginia, has been addressed in other jurisdictions and by the U.S. Supreme Court. The Fifth Amendment, applicable to the states via the Fourteenth Amendment, prohibits compelling an individual to be a witness against themselves in a criminal trial. Similarly, the Virginia Constitution protects against self-incrimination in criminal proceedings. However, this protection is limited to testimonial or communicative evidence and does not extend to nontestimonial evidence. Key case law supports this interpretation: the Supreme Court in Schmerber v. California determined that a defendant could be compelled to undergo a blood-alcohol test without infringing on Fifth Amendment rights, as it did not involve testimonial compulsion. Moreover, in South Dakota v. Neville, the Supreme Court ruled that admitting evidence of a defendant's refusal to submit to a blood-alcohol test does not violate self-incrimination rights. The Court emphasized that the situation of refusal does not necessitate categorizing it as testimonial since the state offers a choice between taking the test or refusing it, with associated penalties for refusal. This choice does not constitute impermissible coercion, affirming the legitimacy of the state's actions in requiring the test. The Court determined that the accused was not compelled to submit to testing, thus the statutes allowing evidence of refusal to test in DUI trials do not infringe on the Fifth Amendment right against self-incrimination. Although the precedent set in Neville suggests rejecting the accused's Fifth Amendment claim, the Court found a violation of Farmer’s rights under Article I, Section 8 of the Virginia Constitution. Farmer argued that his refusal to take a field sobriety test should be inadmissible due to the absence of statutory authority for such tests in Virginia. Unlike South Dakota, Virginia law explicitly prohibits using a defendant's refusal to take a blood or breath test as evidence in DUI trials. The law allows individuals to refuse chemical testing, with refusals potentially resulting in a driver's license suspension, but it also states that such refusals cannot be used as evidence in DUI trials, except in rebuttal. Farmer pointed out that Virginia law does not authorize police to administer field sobriety tests and there are no standardized tests required by statute. Thus, there is no prohibition against admitting evidence of refusal to take these tests, leading the Court to conclude it could not substantiate Farmer's challenge based on statutory grounds. Additionally, the Court noted that field sobriety tests produce "real" or "physical" evidence, not protected by the right against self-incrimination, as they assess coordination and dexterity rather than requiring verbal testimony or self-incrimination from the accused. Refusal to submit to sobriety tests can indicate a defendant's belief that the results would be self-incriminating, suggesting guilt. This behavior is interpreted as a communication of the defendant's mindset regarding intoxication, akin to testimony. The state aims to have juries infer that a refusal implies the defendant feels they would fail the tests. Unlike compelled physical evidence, a refusal engages the defendant's testimonial capacity, revealing their thoughts about intoxication. For a refusal to be inadmissible, it must be compelled by the state, as per Article I, Section 8 of the Virginia Constitution. Prohibited compulsion occurs when a court imposes a penalty for asserting a constitutional privilege, as established in Griffin v. California. In this case, while Farmer had the option to refuse the sobriety tests, stating that he had a choice does not negate the compulsion at play, as he could only avoid the testimonial implications of his refusal by submitting to a test that the Commonwealth had no authority to mandate. Unlike blood or breath tests, there is no implied consent for field tests, and the refusal's testimonial content can be used against the defendant. The potential penalties associated with refusing blood or breath tests do not compel testimonial communications, as those penalties arise regardless of the refusal's content. Ultimately, while officers can request field sobriety tests, they cannot compel compliance beyond that request. The defendant was not obligated to take a sobriety test, which means that no conditions could be placed on his refusal. The state improperly used this refusal to obtain evidence that it would not otherwise have access to, effectively creating a Hobson’s Choice scenario. The court determined that admitting evidence of the defendant's refusal violated his right under Article I, Section 8 of the Virginia Constitution against self-incrimination. Consequently, the trial court erred by allowing this evidence in the DUI trial. The Commonwealth argued that any error in admitting the refusal evidence was harmless, but the court disagreed, emphasizing that in criminal cases, errors necessitate reversal unless it can be shown that they were harmless beyond a reasonable doubt. The presence of additional evidence of intoxication did not negate the prejudicial effect of the refusal evidence, which suggested the defendant believed he was too intoxicated to pass the tests. Therefore, the court reversed the DUI conviction and ordered a new trial while affirming the conviction for driving as a habitual offender, as there was sufficient evidence that the defendant was driving regardless of intoxication status. The relevant South Dakota laws were noted, indicating that while suspects can refuse blood tests, such refusal can lead to license revocation and be used as trial evidence. In Gardner v. Commonwealth, the court ruled that an accused's refusal to submit to a blood test could be admitted as evidence without violating the state constitutional right against self-incrimination. This decision was based on the legal understanding at the time that self-incrimination protections did not extend to extra-judicial admissions. However, this rationale is now outdated, as the right against self-incrimination has since been broadened, following the precedent set in Miranda v. Arizona. Subsequently, Texas enacted laws permitting the introduction of evidence regarding refusal to undergo testing for DUI offenses. Despite this legislative change, Texas courts still adhere to the precedent established in Dudley for incidents occurring before the new law took effect. Additionally, a rehearing en banc for the Commonwealth's petition was granted on June 6, 1990, with a prior mandate stayed pending the rehearing.