460 U.S. 1030
103 S.Ct. 1418
75 L.Ed.2d 782
MONTANAv.Robert Charles JACKSON
No. 81-1531
Supreme Court of the United States
March 21, 1983

On petition for writ of certiorari to the Supreme Court of Montana.
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, California v. Krivda, 409 U.S. 33, 93 S.Ct. 32, 34 L.Ed.2d 45 (1972), and, if its judgment is not based upon state constitutional grounds, for further consideration in light of South Dakota v. Neville, 459 U.S. ---, 103 S.Ct. 916, 74 L.Ed.2d ---- (1983).
Justice STEVENS, dissenting.


1
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:


2
"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. II, § 25 of the      Montana Constitution."  App. to Pet. for Cert. A-2.


3
After analyzing the federal constitutional question in the light of this Court's opinion in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908, the court continued:


4
"The issue is also controlled by Art. II, § 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. II, § 25.  Clearly, to permit evidence of      defendant's refusal to take the breathalyzer test would violate not only the United States Constitution, but also our own constitution.


5
"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.


6
"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 communication 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-10.


7
Consistent with the views I expressed in dissent in South Dakota v. Neville, --- U.S. ----, ----, 103 S.Ct. 916, 924, 74 L.Ed.2d ---- (1983), I believe the statements I 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.

