John Marshall Harlan II

“ The California Supreme Court has held that in circumstances where a driver involved in an accident has reason to believe his compliance with § 20002 (a) creates a substantial risk of disclosure of incriminating evidence, the Fifth Amendment requires that the State must either excuse his noncompliance if he properly pleads the privilege against self-incrimination in a subsequent prosecution for failure to comply or forego the use of any information disclosed by the State's compulsion. ”

“ Thus the public regulation of driving behavior through a pattern of laws which includes compelled self-reporting to ensure financial responsibility for accidents and criminal sanctions to deter dangerous driving entails genuine risks of self-incrimination from the driver's point of view. The conclusion that the Fifth Amendment extends to this regulatory scheme will impair the capacity of the State to pursue these objectives simultaneously. For compelled self-reporting is a necessary part of an effective scheme of assuring personal financial responsibility for automobile accidents. ”

“ Considering the noncriminal governmental purpose in securing the information, the necessity for self-reporting as a means of securing the information, and the nature of the disclosures involved, I cannot say that the purposes of the Fifth Amendment warrant imposition of a use restriction as a condition on the enforcement of this statute. ”

“ In the context of 'hit-and-run' statutes a use immunity-unless honored in the breach by consistent findings of 'no taint'-is likely to render doubtful the State's ability to prosecute in a large class of cases where illegal driving has caused accidents. On the other hand, it would seem unlikely that the state jlegislature will accept the California Supreme Court's invitation to override the use requirement if the legislative judgment is that the State's ability to use the criminal sanction is too severely handicapped by a use restriction. ”

“ If the technique of self-reporting as a means of achieving regulatory goals unrelated to deterrence of antisocial behavior through criminal sanctions is carried to an extreme, the 'accusatorial' system which the Fifth Amendment is supposed to secure can be reduced to mere ritual. ”

“ The sweep of modern governmental regulation-and the dynamic growth of techniques for gathering and using information culled from individuals by force of criminal sanctions-could by course be thought to present a significant threat to the values considered to underpin the Fifth Amendment, quite apart from any supposed illegitimate motives that might not be cognizable under ordinary canons of judicial review. ”

“ These values are implicated by governmental compulsion to disclose information about driving behavior as part of a regulatory scheme including criminal sanctions. The privacy interest is directly implicated, while the interest in preserving a commitment to the 'accusatorial' system is implicated in the more attenuated sense that an officialdom which has available to it the benefits of a self-reporting scheme may be encouraged to rely upon that scheme for all governmental purposes. ”

“ And, if the Hoffman standard is to be truly applied as opposed to indulging in a collection of artificial, if not disingenuous judgments that the risks of incrimination are not there when they really are there-we will have to recognize that in the absence of some sort of immunity grant the individual will be required to decide whether or not to comply without the guidance of a judicial decision as to how the standard applies to his personal situation. ”

“ Yet-at least for an individual whose income is largely or entirely derived from illegal activities-it is, I think, manifestly unsatisfactory to maintain that it should be "perfectly clear (to him) , from a careful consideration of all the circumstances in the case (that his statement of the amount of his income) , cannot possibly have (a) tendency' to incriminate.' Hoffman v. ”