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Silence for Purposes of Refusal – State v. Sherwin

December 10, 2023

Silence for Purposes of Refusal – State v. Sherwin

The right to silence is a key principle in the American criminal justice system. It stems from the 5th Amendment protection against self-incrimination. However, the scope and application of this right continues to be debated. A recent case in Minnesota, State v. Sherwin, highlights some of these issues around using silence as a form of refusal.

Background of the Right to Silence

The most well-known expression of the right to silence comes from the Miranda rights that police read when arresting a suspect: “You have the right to remain silent.” This reminds detainees that they are not required to answer questions from the police. The right traces back to the 5th Amendment in the Bill of Rights, which states that no one “shall be compelled in any criminal case to be a witness against himself.”Over time, the courts have debated how far this right extends and when it applies. Can silence be used against a defendant? Does it only apply after Miranda rights are read? What if the suspect invokes the right some times but not others? Issues like these have emerged in various cases.In Salinas v. Texas (2013), the Supreme Court ruled that suspects must expressly invoke their right to silence. Simply remaining silent, even during a noncustodial police interview, can be used against them as evidence of guilt. So the right to silence requires suspects to clearly state they are relying on their 5th Amendment protections.

Facts of State v. Sherwin

State v. Sherwin deals with using silence as a form of refusal in the context of submitting to a warrantless breath test during a DUI stop. The key facts are:

  • Sherwin was pulled over on suspicion of driving under the influence. The officer read him the Implied Consent Advisory, which informs drivers that test refusal can lead to criminal penalties.
  • Sherwin did not verbally agree or refuse when asked to take a breath test. He remained silent and did not breathe into the machine as instructed.
  • The officer told Sherwin that not taking the test would be considered refusal. Still Sherwin did not respond verbally or take the test as directed.
  • Prosecutors used Sherwin’s silence and failure to submit to the breath test as evidence of guilt in his DUI criminal trial.

The key question became whether Sherwin’s silence could be used against him as evidence of refusing the breath test. Or was this an invocation of his right to silence?

Ruling and Reasoning

The Minnesota Supreme Court ultimately ruled against Sherwin in a 4-3 decision. They held that his silence and actions did constitute refusal of the breath test. As such, it was admissible in court as evidence of his guilt.The majority opinion reasoned that suspects must clearly invoke the right to silence when given an opportunity to take a breath test. They cannot simply remain silent and then claim constitutional protections after the fact. In this case, Sherwin was clearly informed that not responding would be deemed refusal. He did not invoke any rights or verbally refuse testing. Therefore, his continued silence and failure to take the test served as evidence of DUI refusal.The dissenting opinion disagreed. They argued Sherwin’s silence should be protected by the right against self-incrimination. The fact that he did not respond or take the breath test should not have been used as evidence of guilt in court. This penalizes citizens for relying on their constitutional rights.

Implications for DUI Cases

This 4-3 split decision highlights the complexity around using silence or refusal as evidence of guilt in DUI cases. The Sherwin ruling makes clear that suspects must unambiguously invoke their rights when given an opportunity to submit to chemical testing. Simply remaining silent or not responding will likely be used against them as evidence of refusal.However, the strong dissent raises important questions around citizens’ 5th Amendment protections against self-incrimination. Can remaining silent to avoid providing potentially incriminating evidence truly be used against a defendant? What level of clarity is required for suspects to invoke their right to silence in these situations? These issues may continue to be litigated.For now, the Sherwin case serves as a warning to DUI suspects. Police will likely construe silence or non-responsiveness as refusal when offering chemical testing. This can strengthen the prosecution’s case and lead to further criminal penalties. Anyone facing DUI charges should clearly verbally invoke their right to silence or right to consult an attorney when interacting with police. Simply saying nothing is unlikely to be protected after Sherwin.

Broader Implications for the Right to Silence

Beyond drunk driving cases, State v. Sherwin has implications for how silence can be used against criminal suspects more broadly. It suggests that simply not responding to police questioning is insufficient to invoke one’s 5th Amendment protections. This runs counter to a layperson’s expectations around the right to remain silent.More citizens may now face self-incrimination penalties for failing to expressly claim their rights. Some legal experts argue this essentially forces people to speak to clarify their constitutional stance. This undermines principles around avoiding self-incrimination that date back to the founding. It places the burden on citizens to know exactly how to invoke the right to silence.Ultimately, the Sherwin case reflects ongoing debates around the scope, invocation, and application of the right to silence. How this constitutional protection against self-incrimination evolves will bear watching in Minnesota and beyond in the years to come. For now, the latest precedent serves as a warning to suspects that silence alone is unlikely to shield them from refusal penalties.


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