dissenting:
The crucial issue in this case is whether a state may use an individual’s silence following advisement of the constitutional right to remain silent as evidence to establish *545criminal conduct. The majority avoids this by posing the issue as whether evidence of Deering’s “silent refusal” may constitutionally be used to support a criminal charge of refusing to submit to a breathalyzer test required by statute.
I dissent because the majority opinion 1) penalizes an individual for exercising the constitutional right to remain silent, and 2) allows the testimonial use of “nontestimo-nial” evidence, in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).1
I.
The police officers twice informed Deer-ing of his Miranda rights, and each time followed with a request that he submit to a breathalyzer test. On each occasion he remained silent and this silence was used against him at trial.
The majority is correct in recognizing that Alaska is not using Deering’s silence as evidence of his having violated the statute prohibiting drunk driving. However, the state is using Deering’s silence to prove violation of a different criminal statute. This clearly contravenes the promise implicit in the standard Miranda warning that “you have the right to remain silent” because “anything you say can and will be used against you.” See generally Miranda, 384 U.S. at 469, 86 S.Ct. at 1625. The warning’s guarantee that your silence —when kept in exercise of your constitutional right to remain silent — will not be used against you to establish criminal conduct. See id. at 468 n. 37, 86 S.Ct. at 1624-25 n. 37. The prosecution is not permitted to use at trial the fact that an accused stood mute or claimed the right to exercise his/her Fifth Amendment privilege. Id.; see also Baxter v. Palmigiano, 425 U.S. 308, 319, 96 S.Ct. 1551, 1558, 47 L.Ed.2d 810 (1976) (in criminal cases the defendant’s silence may not be treated as “substantive evidence of guilt”); cf. Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489, 1493-94, 12 L.Ed.2d 653 (1964) (“The [Constitution] secures ... the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will and to suffer no penalty ... for such silence.”).
In Newhouse v. Misterly, 415 F.2d 514 (9th Cir.1969), cert. denied, 397 U.S. 966, 90 S.Ct. 1001, 25 L.Ed.2d 258 (1970), this court stated that
where an underlying [state statutory] right to refuse ... a blood test is present, it would be improper to draw adverse inferences from failure of the accused to respond to a request for a blood test because the accused would thereby be penalized for exercising his rights to refuse the test.
Id. at 518 (interpreting Schmerber v. California, 384 U.S. 757, 765 n. 9, 86 S.Ct. 1826, 1833, 16 L.Ed.2d 908 (1966)). In this case we address a situation where the impropriety of drawing the adverse conclusion of guilt is much more compelling than the situation referred to in Newhouse which contemplated a statutory right of refusal; we are confronted with guilt being inferred from the exercise of a constitutional right to remain silent.
To support its decision, the majority relies heavily upon South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983).2 This reliance is misplaced because *546Neville is inapposite to the case at bar in two ways. First, Neville involved the use of an affirmative statement to prove a criminally sanctioned refusal. Second, the affirmative statement at issue was assumed to constitute a refusal to perform a statutorily required act. In contrast, this case presents the issue of whether an individual’s silence, following a Miranda warning, can be used to establish, let alone itself constitute, a criminally sanctioned refusal. I would hold that it cannot constitutionally be so used.
II.
The majority also holds that Deering’s “refusal” to perform a breathalyzer test is not transformed into testimonial evidence3 simply because it is criminalized. But see Schmerber, 384 U.S. at 765 n. 9, 86 S.Ct. at 1833 n. 9. (“This conclusion [that the results of a breathalyzer test are not testimonial] would not necessarily govern had the state tried to show that the accused had incriminated himself when told that he would have to be tested.”) Here the majority has avoided the crux of the issue. Our inquiry should not focus on the testimonial quality of a refusal, but on whether the exercise of a constitutional right to remain silent becomes testimony when used as evidence of a criminally sanctioned refusal. I would hold that the use of silence to establish a refusal is inherently testimonial, cf. Schmerber, 384 U.S. at 761 n. 5, 86 S.Ct. at 1830 n. 5. (“A nod or head-shake is as much a ‘testimonial’ or ‘communicative’ act ... as are spoken words.”), when the refusal sought to be established is itself criminal conduct. This is because the silence is used — against the individual’s will — as an admission of guilt. Cf. Estelle v. Smith, 451 U.S. 454, 463, 101 S.Ct. 1866, 1873, 68 L.Ed.2d 359 (1981) (“Any effort by the State to compel respondent to testify against his will at the sentencing hearing clearly would contravene the Fifth Amendment.”).
“The Fifth and the Fourteenth Amendments provide that no person ‘shall be compelled in any criminal case to be a witness against himself.’ ” New Jersey v. Portash, 440 U.S. 450, 459, 99 S.Ct. 1292, 1297, 59 L.Ed.2d 501 (1979). Moreover, “any criminal trial use against a defendant of his involuntary statement is a denial of due process of law — ” Mincey v. Arizona, 437 U.S. 385, 398, 98 S.Ct. 2408, 2416, 57 L.Ed.2d 290 (1978) (emphasis in original). Thus in Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), the Supreme Court declared that “[a]ny effort” by a state to compel an individual “to testify against his will at [a] sentencing hearing clearly would contravene the Fifth Amendment.” Id. at 463, 101 S.Ct. at 1873 (footnote omitted). Allowing Alaska to use the exercise of an individual’s constitutional right to remain silent as proof of guilt means that a State may force an individual to involuntarily testify against him/herself and thus is equivalent to authorizing the conduct proscribed by the Court in Estelle.
The majority, while “acknowledgpng] that the choice in this case appears more coercive than that in Neville,” nonetheless relies on the case to support its holding that Deering’s “refusal” was not compelled. There is, however, a paramount difference between the “difficult choices” referred to in Neville, 459 U.S. at 564, 103 S.Ct. at 923 (“the criminal process often requires suspects and defendants to make difficult choices”), and the catch-22 presented by the Alaska statutes in light of *547the majority’s opinion. The situation faced by Deering — to submit to a breathalyzer test which could establish violation of a drunk driving statute or have the exercise of his constitutional right to remain silent be used to prove violation of another statute — goes beyond the bounds of Neville4 and is more closely analogous to the “choices” proscribed by the Supreme Court in other relevant precedent. See, e.g., New Jersey v. Portash, 440 U.S. at 459, 99 S.Ct. at 1297 (“constitutional privilege against compulsory self-incrimination” violated where witness was told he could “talk or face the government’s coercive sanctions, notably, a conviction for contempt”); Murphy v. Waterfront Comm’n of New York Harbor, 378 U.S. 52, 77, 84 S.Ct. 1594, 1608, 12 L.Ed.2d 678 (1964) (one jurisdiction may not compel “testimony which could be used to convict him of a crime in another jurisdiction”); cf. Schmerber, 384 U.S. at 765 n. 9, 86 S.Ct. at 1833 n. 9 (choice between confession and painful, dangerous or severe operation would likely be unconstitutional coercive).
III.
The majority opinion effectively criminalizes the exercise of a constitutional right to remain silent by equating Deering’s silence with the criminal refusal itself. Constitutional privileges are nullified when individuals are penalized for exercising them. I would not allow a defendant to be “whipsawed into incriminating himself”, Knapp v. Schweitzer, 357 U.S. 371, 385, 78 S.Ct. 1302, 1310, 2 L.Ed.2d 1393 (1958) (Black, J., dissenting), since such is the type of government coercion the Fifth Amendment was intended to prevent. I would reverse the district court and grant the petition for a writ of habeas corpus.
. I am not challenging Alaska’s right to criminalize an individual’s refusal to take the blood alcohol test. Civil penalties for such refusals have specifically been found to be constitutional. See, e.g., South Dakota v. Neville, 459 U.S. 553, 560, 103 S.Ct. 916, 920-21, 74 L.Ed.2d 748 (1983) (revocation of driver’s license "for refusing to take a blood-alcohol test is unquestionably legitimate, assuming appropriate procedural protections.”) Nor am I saying that Deering has a right to refuse to take the breathalyzer test. This court has specifically determined that there is not such a right under the Alaska statutes. Burnett v. Municipality of Anchorage, 806 F.2d 1447, 1450 (9th Cir.1986). Further, I am not arguing that the refusal itself becomes testimonial when criminalized.
These issues need not be addressed since resolution of the threshold question — whether silence in the context of a post-Miranda warning can be used as evidence establishing the requisite refusal — disposes of the case.
. In Neville the Supreme Court examined whether the admission into evidence at trial of the defendant's refusal to take a statutorily required blood test violated his Fifth Amendment right against self-incrimination where another of the *546state’s statutes authorized revocation of an individual’s driver’s license if s/he refused to submit to the test. Holding that use of the refusal did not violate the defendant’s Fifth Amendment right, the Court specifically noted Neville’s response after twice being asked to take the blood alcohol test. Neville had responded each time by stating: “I’m too drunk, I won’t pass the test.” 459 U.S. at 555-56, 103 S.Ct. at 918.
. The Supreme Court has said that “[i]f it wishes to compel persons to submit to ... attempts to discover evidence, the State may have to forgo the advantage of any testimonial products of administering the test — products which would fall within the privilege.” Schmerber, 384 U.S. at 765 n. 9, 86 S.Ct. at 1833 n. 9 (emphasis in original). The majority properly notes that under Schmerber, evidence that is compelled and "testimonial" or "communicative" in nature falls clearly within the scope of protected exercise of the Fifth Amendment privilege.
. In Miranda the Supreme Court said that "[u]nless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice.” 384 U.S. at 458, 86 S.Ct. at 1619. By equating silence with refusal the majority goes beyond the standard set forth in Miranda, for what could be more inherently coercive than the choice between violating one law, and providing evidence which will conclusively establish whether another has been violated?