text:
sitar : Binisaya - Cebuano to English Dictionary and Thesaurus.
v. (communication) 1. accost, address, come up to speak to someone.
~ greet, recognise, recognize express greetings upon meeting someone.
~ approach make advances to someone, usually with a proposal or suggestion.; "I was approached by the President to serve as his adviser in foreign matters"
~ come, come up move toward, travel toward something or somebody or approach something or somebody.; "He came singing down the road"; "Come with me to the Casbah"; "come down here!"; "come out of the closet!"; "come into the room"
v. (communication) 2. accost, hook, solicit approach with an offer of sexual favors.; "he was solicited by a prostitute"; "The young man was caught soliciting in the park"
~ snare, hook entice and trap.; "The car salesman had snared three potential customers"
~ offer make available or accessible, provide or furnish.; "The conference center offers a health spa"; "The hotel offers private meeting rooms"
n. (communication) 1. acknowledgment, citation, cite, credit, mention, quotation, reference a short note recognizing a source of information or of a quoted passage.; "the student's essay failed to list several important citations"; "the acknowledgments are usually printed at the front of a book"; "the article includes mention of similar clinical cases"
~ annotation, notation, note a comment or instruction (usually added).; "his notes were appended at the end of the article"; "he added a short notation to the address on the envelope"
~ photo credit a note acknowledging the source of a published photograph.
~ cross-index, cross-reference a reference at one place in a work to information at another place in the same work.
v. (communication) 2. advert, bring up, cite, mention, name, refer make reference to.; "His name was mentioned in connection with the invention"
~ have in mind, think of, mean intend to refer to.; "I'm thinking of good food when I talk about France"; "Yes, I meant you when I complained about people who gossip!"
~ commend, remember mention as by way of greeting or to indicate friendship.; "Remember me to your wife"
~ speak of the devil mention someone's name who just then appears.
~ remember mention favorably, as in prayer.; "remember me in your prayers"
~ quote, cite refer to for illustration or proof.; "He said he could quote several instances of this behavior"
~ touch on refer to or discuss briefly.
~ invoke, appeal cite as an authority; resort to.; "He invoked the law that would save him"; "I appealed to the law of 1900"; "She invoked an ancient law"
~ namedrop refer to people that one assumes one's interlocutors admire in order to try to impress them.
~ bring up, raise put forward for consideration or discussion.; "raise the question of promotions"; "bring up an unpleasant topic"
~ drag up, dredge up mention something unpleasant from the past.; "Drag up old stories"
~ cross-refer refer from one entry to another, as in catalogues, books, and lists.
v. (communication) 3. cite, mention commend.; "he was cited for his outstanding achievements"
~ acknowledge, notice express recognition of the presence or existence of, or acquaintance with.; "He never acknowledges his colleagues when they run into him in the hallway"; "She acknowledged his complement with a smile"; "it is important to acknowledge the work of others in one's own writing"
v. (creation) 4. cite, reference refer to.; "he referenced his colleagues' work"
v. (communication) 5. cite, quote repeat a passage from.; "He quoted the Bible to her"
~ misquote quote incorrectly.; "He had misquoted the politician"
v. (communication) 6. cite, quote refer to for illustration or proof.; "He said he could quote several instances of this behavior"
~ quote, cite repeat a passage from.; "He quoted the Bible to her"
~ cite, mention, refer, advert, name, bring up make reference to.; "His name was mentioned in connection with the invention"
v. (communication) 7. abduce, adduce, cite advance evidence for.
v. (communication) 8. cite, summon, summons call in an official matter, such as to attend court.
~ vouch summon (a vouchee) into court to warrant or defend a title.
~ send for, call order, request, or command to come.; "She was called into the director's office"; "Call the police!"
~ demand summon to court.
n. (communication) 1. express, express mail mail that is distributed by a rapid and efficient system.
~ pony express express mail carried by relays of riders on horseback; especially between Missouri and California around 1860.
~ mail the bags of letters and packages that are transported by the postal service.
n. (artifact) 2. express, limited public transport consisting of a fast train or bus that makes only a few scheduled stops.; "he caught the express to New York"
n. (act) 3. express, expressage rapid transport of goods.
~ shipping, transport, transportation the commercial enterprise of moving goods and materials.
v. (communication) 4. evince, express, show give expression to.; "She showed her disappointment"
~ sneer express through a scornful smile.; "she sneered her contempt"
~ convey make known; pass on, of information.; "She conveyed the message to me"
~ connote, imply express or state indirectly.
~ burst out give sudden release to an expression.; "We burst out laughing"; "'I hate you,' she burst out"
~ paint a picture, evoke, suggest call to mind.; "this remark evoked sadness"
~ imply suggest as a logically necessary consequence; in logic.
~ give manifest or show.; "This student gives promise of real creativity"; "The office gave evidence of tampering"
~ exude make apparent by one's mood or behavior.; "She exudes great confidence"
~ give vent, vent, ventilate give expression or utterance to.; "She vented her anger"; "The graduates gave vent to cheers"
~ give voice, phrase, word, articulate, formulate put into words or an expression.; "He formulated his concerns to the board of trustees"
~ accent, accentuate, emphasize, stress, emphasise, punctuate to stress, single out as important.; "Dr. Jones emphasizes exercise in addition to a change in diet"
~ menace express a threat either by an utterance or a gesture.; "he menaced the bank manager with a stick"
~ beam express with a beaming face or smile.; "he beamed his approval"
~ smile express with a smile.; "She smiled her thanks"
v. (communication) 5. express, give tongue to, utter, verbalise, verbalize articulate; either verbally or with a cry, shout, or noise.; "She expressed her anger"; "He uttered a curse"
~ blaspheme, curse, cuss, swear, imprecate utter obscenities or profanities.; "The drunken men were cursing loudly in the street"
~ wish make or express a wish.; "I wish that Christmas were over"
~ call out, cry out, exclaim, outcry, cry, shout utter aloud; often with surprise, horror, or joy.; "`I won!' he exclaimed"; "`Help!' she cried"; "`I'm here,' the mother shouted when she saw her child looking lost"
~ clamour, clamor utter or proclaim insistently and noisily.; "The delegates clamored their disappointment"
~ vociferate, shout out utter in a very loud voice.; "They vociferated their demands"
~ marvel express astonishment or surprise about something.
~ voice give voice to.; "He voiced his concern"
~ raise cause to be heard or known; express or utter.; "raise a shout"; "raise a protest"; "raise a sad cry"
~ breathe utter or tell.; "not breathe a word"
~ drop utter with seeming casualness.; "drop a hint"; "drop names"
~ pour out express without restraint.; "The woman poured out her frustrations as the judge listened"
~ get off deliver verbally.; "He got off the best line I've heard in a long time"
~ platitudinize utter platitudes.; "The candidate platitudinized and bored the audience"
~ say utter aloud.; "She said `Hello' to everyone in the office"
~ represent serve as a means of expressing something.; "The flower represents a young girl"
~ pooh-pooh express contempt about.
~ hurl, throw utter with force; utter vehemently.; "hurl insults"; "throw accusations at someone"
v. (communication) 6. carry, convey, express serve as a means for expressing something.; "The painting of Mary carries motherly love"; "His voice carried a lot of anger"
~ measure, quantify express as a number or measure or quantity.; "Can you quantify your results?"
~ channel, transmit, carry, impart, conduct, convey transmit or serve as the medium for transmission.; "Sound carries well over water"; "The airwaves carry the sound"; "Many metals conduct heat"
v. (communication) 7. express, state indicate through a symbol, formula, etc..; "Can you express this distance in kilometers?"
~ denote, refer have as a meaning.; "`multi-' denotes `many' "
~ vote express a choice or opinion.; "I vote that we all go home"; "She voted for going to the Chinese restaurant"
~ vote express one's choice or preference by vote.; "vote the Democratic ticket"
v. (perception) 8. express manifest the effects of (a gene or genetic trait).; "Many of the laboratory animals express the trait"
~ actualise, actualize, realize, substantiate, realise make real or concrete; give reality or substance to.; "our ideas must be substantiated into actions"
v. (contact) 9. express, extract, press out obtain from a substance, as by mechanical action.; "Italians express coffee rather than filter it"
~ ream squeeze the juice out (of a fruit) with a reamer.; "ream oranges"
v. (communication) 10. express send by rapid transport or special messenger service.; "She expressed the letter to Florida"
~ mail, send, post cause to be directed or transmitted to another place.; "send me your latest results"; "I'll mail you the paper when it's written"
adj. 11. express not tacit or implied.; "her express wish"
~ explicit, expressed precisely and clearly expressed or readily observable; leaving nothing to implication.; "explicit instructions"; "she made her wishes explicit"; "explicit sexual scenes"
adj. 12. express without unnecessary stops.; "an express train"; "an express shipment"
~ fast acting or moving or capable of acting or moving quickly.; "fast film"; "on the fast track in school"; "set a fast pace"; "a fast car"
adv. 13. express by express.; "please send the letter express"

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A foreign corporation, for lump sums, made and performed contracts to furnish completed automatic railway signal systems in Virginia, in the performance of which the materials, supplies, machinery, devices, and equipment were brought from without, but their installation, as structures permanently attached to the soil, required employment of local labor, digging of ditches, construction of concrete foundations, and painting. Held that local business was involved, separate and distinct from interstate commerce, and subject to the licensing power of the state. Browning v. Waycross, 233 U. S. 16. The Virginia law imposing a fee for the privilege of doing local business of $1,000 on foreign corporations with capital over $1,000,000 and not exceeding $10,000,000 (Acts 1910, c. 53, § 38a), upheld as not arbitrary or unreasonable under all the circumstances, though the case is on the border line.
Plaintiff in error seeks reversal of a judgment of the Supreme Court of Appeals of Virginia which affirmed an order of the Corporation Commission imposing a fine upon it for doing business within the state without first obtaining proper authority.
"The defendant is a corporation of the State of New York, having an authorized capital of $5,000,000. Its principal office and factory is at Rochester, N.Y. where it owns and operates a large manufacturing plant devoted to the manufacture of materials chiefly used in the construction of railway signals which it sells and constructs all over the world. It has a branch factory at Montreal, Canada, and maintains branch offices in New York City, Chicago, and San Francisco."
"By contract dated the 5th day of May, 1914, with the Southern Railway Company, the defendant agreed to furnish certain materials, supplies, machinery, devices and equipment, as well as all necessary labor, and to install, erect, and put in place certain signals and apparatus shown on the plans described in the specifications, from Amherst to Whittles, Virginia, fifty-eight miles, and to 'complete the entire system and turn same over to the railway company as a finished job,' subject to inspection and acceptance, for $85,597. Similar contracts had been previously made and fully performed, one dated September 6, 1911, covering the lines of the Southern Railway in Virginia from Monroe to Montview, Virginia, thirteen miles, for $16,015, and one dated July 18, 1913, from Orange to Seminary, Virginia, seventy-six miles, for $112,428. The aggregate distance in this state covered by these contracts being 147 miles, and the total consideration being $214,040."
"The purpose of these signals is to promote safety of railway operation, and they operate automatically."
and to paint the completed structures. The completed structures are along the side of the railway track, about two miles apart, and are twenty-two or twenty-three feet high. In the language of the witness, Moffett:"
"It is necessary to erect the signal mechanism, the masts supporting the mechanism, the houses for protecting the relays, reactors, reactants, and other similar electrical devices protected from the weather, then the transformers, high tension line arresters, and low tension line arrestors."
"The completed structures are permanently attached to the freehold upon concrete bases."
We think the recited facts clearly show local business separate and distinct from interstate commerce within the doctrine announced and applied in Browning v. Waycross, 233 U. S. 16.
It is further insisted that, as the amount of prescribed entrance fee is based upon maximum capital stock, it constitutes a burden on interstate commerce, contrary to the federal Constitution.
over one million and not exceeding ten million dollars when it obtains a certificate of authority to do local business to pay a fee of one thousand dollars. Inspection of the statute shows that prescribed fees do not vary in direct proportion to capital stock, and that a maximum is fixed. In the class to which plaintiff in error belongs, the amount specified is one thousand dollars and, under all the circumstances, we cannot say this is wholly arbitrary or unreasonable.
Considering what we said in Baltic Mining Co. v. Massachusetts, 231 U. S. 68; St. Louis Southwestern Ry. Co. v. Arkansas, 235 U. S. 350; Kansas City, Fort Scott & Memphis Ry. Co. v. Kansas, 240 U. S. 227; Kansas City, Memphis & Birmingham R. Co. v. Stiles, 242 U. S. 111, the two characteristics of the statute just referred to must be regarded as sufficient to save its validity. It seems proper, however, to add that the case is on the border line. See Looney v. Crane Co., 245 U. S. 178; International Paper Co. v. Massachusetts, ante, 246 U. S. 135, and Locomobile Co. v. Massachusetts, ante, 246 U. S. 146.
"Sec. 38a. Every foreign corporation, when it obtains from the state Corporation Commission a certificate of authority to do business in this state, shall pay an entrance fee into the treasury of Virginia, to be ascertained and fixed as follows:"
"For a company whose maximum capital stock is fifty thousand dollars or less, thirty dollars; for a company whose capital stock is over fifty thousand dollars, and not to exceed one million dollars, sixty cents for each one thousand dollars or fraction thereof; over one million dollars, and not to exceed ten million dollars, one thousand dollars; over ten million dollars, and not to exceed twenty million dollars, one thousand two hundred and fifty dollars; over twenty million dollars, and not to exceed thirty million dollars, one thousand five hundred dollars; over thirty million dollars, and not to exceed forty million dollars, one thousand seven hundred and fifty dollars; over forty million dollars, and not to exceed fifty million dollars, two thousand dollars; over fifty million dollars, and not to exceed sixty million dollars, two thousand two hundred and fifty dollars; over sixty million dollars, and not to exceed seventy million dollars, two thousand five hundred dollars; over seventy million dollars, and not to exceed eighty million dollars, two thousand seven hundred and fifty dollars; over eighty million dollars, and not to exceed ninety million dollars, three thousand dollars; over ninety million dollars, five thousand dollars, provided, however, that foreign corporations without capital stock shall pay fifty dollars only for such certificate of authority to do business in this state."
"For the purpose of this act, the amount to which the company is authorized by the terms of its charter to increase its capital stock shall be considered its maximum capital stock."


A South Dakota statute permits a person suspected of driving while intoxicated to refuse to submit to a blood alcohol test, but authorizes revocation of the driver's license of a person so refusing the test and permits such refusal to be used against him at trial. When respondent was arrested by police officers in South Dakota for driving while intoxicated, the officers asked him to submit to a blood alcohol test and warned him that he could lose his license if he refused, but did not warn him that the refusal could be used against him at trial. Respondent refused to take the test. The South Dakota trial court granted respondent's motion to suppress all evidence of his refusal to take the blood alcohol test. The South Dakota Supreme Court affirmed on the ground that the statute allowing introduction of evidence of the refusal violated the privilege against self-incrimination.
1. The admission into evidence of a defendant's refusal to submit to a blood alcohol test does not offend his Fifth Amendment right against self-incrimination. A refusal to take such a test, after a police officer has lawfully requested it, is not an act coerced by the officer, and thus is not protected by the privilege against self-incrimination. The offer of taking the test is clearly legitimate, and becomes no less legitimate when the State offers a second option of refusing the test, with the attendant penalties for making that choice. Pp. 459 U. S. 558-564.
2. It would not be fundamentally unfair in violation of due process to use respondent's refusal to take the blood alcohol test as evidence of guilt, even though the police failed to warn him that the refusal could be used against him at trial. Doyle v. Ohio, 426 U. S. 610, distinguished. Such failure to warn was not the sort of implicit promise to forgo use of evidence that would unfairly "trick" respondent if the evidence were later offered against him at trial. Pp. 459 U. S. 564-566.
312 N.W.2d 723, reversed and remanded.
O'CONNOR, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. STEVENS, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 459 U. S. 566.
Schmerber v. California, 384 U. S. 757 (1966), held that a State could force a defendant to submit to a blood alcohol test without violating the defendant's Fifth Amendment right against self-incrimination. We now address a question left open in Schmerber, supra, at 384 U. S. 765, n. 9, and hold that the admission into evidence of a defendant's refusal to submit to such a test likewise does not offend the right against self-incrimination.
Two Madison, South Dakota, police officers stopped respondent's car after they saw him fail to stop at a stop sign. The officers asked respondent for his driver's license and asked him to get out of the car. As he left the car, respondent staggered and fell against the car to support himself.
Since other jurisdictions have found no Fifth Amendment violation from the admission of evidence of refusal to submit to blood alcohol tests, [Footnote 7] we granted certiorari to resolve the conflict. 456 U.S. 971 (1982).
wars"); Mackey v. Montrym, 443 U. S. 1, 443 U. S. 17-19 (1979) (recognizing the "compelling interest in highway safety").
As part of its program to deter drinkers from driving, South Dakota has enacted an implied consent law. S.D. Comp. Laws Ann. § 32-23-10 (Supp.1982). This statute declares that any person operating a vehicle in South Dakota is deemed to have consented to a chemical test of the alcoholic content of his blood if arrested for driving while intoxicated. In Schmerber v. California, 384 U. S. 757 (1966), this Court upheld a state-compelled blood test against a claim that it infringed the Fifth Amendment right against self-incrimination, made applicable to the States through the Fourteenth Amendment. [Footnote 8] We recognized that a coerced blood test infringed to some degree the "inviolability of the human personality" and the "requirement that the State procure the evidence against an accused by its own independent labors,'" but noted the privilege has never been given the full scope suggested by the values it helps to protect. Id. at 384 U. S. 762. We therefore held that the privilege bars the State only from compelling "communications" or "testimony." Since a blood test was "physical or real" evidence, rather than testimonial evidence, we found it unprotected by the Fifth Amendment privilege.
refuse the test, and indeed requires police officers to inform the suspect of his right to refuse. S.D.Comp.Laws Ann. § 32-23-10 (Supp.1982). This permission is not without a price, however. South Dakota law authorizes the Department of Public Safety, after providing the person who has refused the test an opportunity for a hearing, to revoke for one year both the person's license to drive and any nonresident operating privileges he may possess. § 32-23-11. Such a penalty for refusing to take a blood alcohol test is unquestionably legitimate, assuming appropriate procedural protections. See Mackey v. Montrym, supra.
"simply forbids any compulsory revealing or communication of an accused person's thoughts or mental processes, whether it is by acts, failure to act, words spoken or failure to speak."
"[t]he Court has held repeatedly that the Fifth Amendment is limited to prohibiting the use of 'physical or moral compulsion' exerted on the person asserting the privilege."
"[t]he element of compulsion or involuntariness was always an ingredient of the right and, before the right existed, of protests against incriminating interrogatories."
L. Levy, Origins of the Fifth Amendment 328 (1968).
compulsion inquiry. The classic Fifth Amendment violation -- telling a defendant at trial to testify -- does not, under an extreme view, compel the defendant to incriminate himself. He could submit to self-accusation, or testify falsely (risking perjury) or decline to testify (risking contempt). But the Court has long recognized that the Fifth Amendment prevents the State from forcing the choice of this "cruel trilemma" on the defendant. See Murphy v. Waterfront Comm'n, 378 U. S. 52, 378 U. S. 55 (1964). See also New Jersey v. Portash, 440 U. S. 450, 440 U. S. 459 (1979) (telling a witness under a grant of legislative immunity to testify or face contempt sanctions is "the essence of coerced testimony"). Similarly, Schmerber cautioned that the Fifth Amendment may bar the use of testimony obtained when the proffered alternative was to submit to a test so painful, dangerous, or severe, or so violative of religious beliefs, that almost inevitably a person would prefer "confession." 384 U.S. at 384 U. S. 765, n. 9. [Footnote 14] Cf. Miranda v. Arizona, 384 U. S. 436, 384 U. S. 458 (1966) (unless compulsion inherent in custodial surroundings is dispelled, no statement is truly a product of free choice).
choice. To the contrary, the State wants respondent to choose to take the test, for the inference of intoxication arising from a positive blood alcohol test is far stronger than that arising from a refusal to take the test.
Doyle mentioned this rationale in applying the rule to the States, 426 U.S. at 426 U. S. 617, the Court relied on the fundamental unfairness of implicitly assuring a suspect that his silence will not be used against him and then using his silence to impeach an explanation subsequently offered at trial. Id. at 426 U. S. 618.
Unlike the situation in Doyle, we do not think it fundamentally unfair for South Dakota to use the refusal to take the test as evidence of guilt, even though respondent was not specifically warned that his refusal could be used against him at trial. First, the right to silence underlying the Miranda warnings is one of constitutional dimension, and thus cannot be unduly burdened. See Miranda, supra, at 384 U. S. 468, n. 37. Cf. Fletcher v. Weir, 455 U. S. 603 (1982) (post-arrest silence without Miranda warnings may be used to impeach trial testimony). Respondent's right to refuse the blood alcohol test, by contrast, is simply a matter of grace bestowed by the South Dakota Legislature.
the other option, the officers specifically warned respondent that failure to take the test could lead to loss of driving privileges for one year. It is true the officers did not inform respondent of the further consequence that evidence of refusal could be used against him in court, [Footnote 17] but we think it unrealistic to say that the warnings given here implicitly assure a suspect that no consequences other than those mentioned will occur. Importantly, the warning that he could lose his driver's license made it clear that refusing the test was not a "safe harbor," free of adverse consequences.
While the State did not actually warn respondent that the test results could be used against him, we hold that such a failure to warn was not the sort of implicit promise to forgo use of evidence that would unfairly "trick" respondent if the evidence were later offered against him at trial. We therefore conclude that the use of evidence of refusal after these warnings comported with the fundamental fairness required by due process.
The judgment of the South Dakota Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
"You have the right to remain silent. You don't have to talk to me unless you want to do so. If you want to talk to me, I must advise you whatever you say can and will be used as evidence against you in court. You have the right to confer with a lawyer, and to have a lawyer present with you while you're being questioned. If you want a lawyer but are unable to pay for one, a lawyer will be appointed to represent you free of any cost to you. Knowing these rights, do you want to talk to me without having a lawyer present? You may stop talking to me at any time. You may also demand a lawyer at any time."
App. 8. See Miranda v. Arizona, 384 U. S. 436, 384 U. S. 467-473 (1966).
"I have arrested you for driving or being in actual physical control of a vehicle while under the influence of alcohol or drugs, a violation of S.D.C. L. 32-23-1. I request that you submit to a chemical test of your blood to determine your blood alcohol concentration. You have the right to refuse to submit to such a test, and if you do refuse, no test will be given. You have the right to a chemical test by a person of your own choosing at your own expense in addition to the test I have requested. You have the right to know the results of any chemical test. If you refuse the test I have requested, your driver's license and any nonresidence driving privilege may be revoked for one year after an opportunity to appear before a hearing officer to determine if your driver's license or nonresidence driving privilege shall be revoked. If your driver's license or nonresidence driving privileges are revoked by the hearing officer, you have the right to appeal to Circuit Court. Do you understand what I told you? Do you wish to submit to the chemical test I have requested?"
Responding to other questions, respondent informed the officers that he had been drinking "close to one case" by himself at home, and that his last drink was "about ten minutes ago." Tr. of Preliminary Hearing 8.
South Dakota Comp.Laws Ann. § 19-13-28.1 (Supp.1982) likewise declares that, notwithstanding the general rule in South Dakota that the claim of a privilege is not a proper subject of comment by judge or counsel, evidence of refusal to submit to a chemical analysis of blood, urine, breath, or other bodily substance "is admissible into evidence" at a trial for driving under the influence of alcohol. A person "may not claim privilege against self-incrimination with regard to admission of refusal to submit to chemical analysis." Ibid.
As JUSTICE STEVENS emphasizes, post at 459 U. S. 567, the South Dakota Supreme Court clearly held that the statute violated the State, as well as Federal, Constitution. Although this would be an adequate state ground for decision, we do not read the opinion as resting on an independent state ground. Rather, we think the court determined that admission of this evidence violated the Fifth Amendment privilege against self-incrimination, and then concluded without further analysis that the state privilege was violated as well. In reaching its holding, the court first analyzed our decisions in Schmerber v. California, 384 U. S. 757 (1966), and Miranda v. Arizona, supra. The court then described the issue for its review as being "[t]o determine whether the Fifth Amendment privilege against self-incrimination applies to refusal evidence," 312 N.W.2d 723, 725 (1981) (emphasis added), and later asked "whether this testimonial evidence was compelled for purposes of applying the Fifth Amendment standard, " id. at 726 (emphasis added). The cases relied on by the court to resolve these issues analyze the federal privilege against self-incrimination.
The analysis of the court below was remarkably similar to that of the state court opinion reviewed in Delaware v. Prouse, 440 U. S. 648, 440 U. S. 651-653 (1979). That state court opinion analyzed various decisions interpreting the Federal Constitution, concluded that the Fourth Amendment violated the police procedure at issue there, and then summarily held that the State Constitution was therefore also infringed. As we characterized their analysis, every police practice found to violate the Fourth Amendment would, without further analysis, be held to be contrary to the State Constitution as well. In such a situation, we concluded, this Court has jurisdiction to review the federal constitutional issue decided below.
"[s]ince the Fifth Amendment of the U.S. Constitution is broad enough to exclude this evidence, there is no need to draw a distinction at this time between S.D. Const. Art. VI, § 9 and the Fifth Amendment of the U.S. Constitution."
Ibid. The court could not have stated more clearly that it simply assumed that any violation of the Fifth Amendment privilege also violated, without further analysis, the state privilege. This was precisely the reasoning we found sufficient in Prouse to give us jurisdiction to hear the case and decide the federal constitutional issue.
The South Dakota Supreme Court also remanded for a determination whether respondent's statement that he was too drunk to pass the test was made after a voluntary waiver of his right to remain silent. As yet, of course, there has been no final judgment in this case. This Court nevertheless has jurisdiction under 28 U.S.C. § 1257(3) to review the federal constitutional issue which has been finally determined, because if the State ultimately prevails at trial, the federal issue will be mooted; and if the State loses at trial, governing state law, S.D.Comp.Laws Ann. §§ 23A-32-4 and 23A-32-5 (1979), prevents it from again presenting the federal claim for review. See California v. Stewart (decided with Miranda v. Arizona, 384 U. S. 436, 384 U. S. 498, n. 71 (1966)); Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 420 U. S. 481 (1975).
See, e.g., cases cited in nn. 11 and | 11 and S. 553fn13|>13, infra.
Schmerber also rejected arguments that the coerced blood test violated the right to due process, the right to counsel, and the prohibition against unreasonable searches and seizures.
Schmerber did caution that due process concerns could be involved if the police initiated physical violence while administering the test, refused to respect a reasonable request to undergo a different form of testing, or responded to resistance with inappropriate force. 384 U.S. at 384 U. S. 760, n. 4.
Griffin held that a prosecutor's or trial court's comments on a defendant's refusal to take the witness stand impermissibly burdened the defendant's Fifth Amendment right to refuse. Unlike the defendant's situation in Griffin, a person suspected of drunk driving has no constitutional right to refuse to take a blood alcohol test. The specific rule of Griffin is thus inapplicable.
See, e.g., Newhouse v. Misterly, 415 F.2d 514 (CA9 1969); Hill v. State, 366 So.2d 318, 324-325 (Ala.1979); Campbell v. Superior Court, 106 Ariz. 542, 479 P.2d 685 (1971); State v. Haze, 218 Kan. 60, 542 P.2d 720 (1975) (refusal to give handwriting exemplar); City of Westerville v. Cunningham, 15 Ohio St.2d 121, 239 N.E.2d 40 (1968).
The Court in Schmerber pointed to the lie detector test as an example of evidence that is difficult to characterize as testimonial or real. Even though the test may seek to obtain physical evidence, we reasoned that to compel a person to submit to such testing "is to evoke the spirit and history of the Fifth Amendment." 384 U.S. at 384 U. S. 764. See also People v. Ellis, 65 Cal.2d 529, 537, and n. 9, 421 P.2d 393, 397, and n. 9 (1966) (analyzing lie detector tests as within the Fifth Amendment privilege). A second example of seemingly physical evidence that nevertheless invokes Fifth Amendment protection was presented in Estelle v. Smith, 451 U. S. 454 (1981). There, we held that the Fifth Amendment privilege protected compelled disclosures during a court-ordered psychiatric examination. We specifically rejected the claim that the psychiatrist was observing the patient's communications simply to infer facts of his mind, rather than to examine the truth of the patient's statements.
Many courts have found no self-incrimination problem on the ground of no coercion, or on the analytically related ground that the State, if it can compel submission to the test, can qualify the right to refuse the test. See, e.g., Welch v. District Court, 594 F.2d 903 (CA2 1979); State v. Meints, 189 Neb. 264, 202 N.W.2d 202 (1972); State v. Gardner, 52 Ore.App. 663, 629 P.2d 412 (1981); State v. Brean, 136 Vt. 147, 385 A.2d 1085 (1978).
Nothing in the record suggests that respondent made or could sustain such a claim in this case.
In the context of an arrest for driving while intoxicated, a police inquiry of whether the suspect will take a blood alcohol test is not an interrogation within the meaning of Miranda. As we stated in Rhode Island v. Innis, 446 U. S. 291, 446 U. S. 301 (1980), police words or actions "normally attendant to arrest and custody" do not constitute interrogation. The police inquiry here is highly regulated by state law, and is presented in virtually the same words to all suspects. It is similar to a police request to submit to fingerprinting or photography. Respondent's choice of refusal thus enjoys no prophylactic Miranda protection outside the basic Fifth Amendment protection. See generally Arenella, Schmerber and the Privilege Against Self-Incrimination: A Reappraisal, 20 Am.Crim.L.Rev. 31, 56-58 (1982).
Even though the officers did not specifically advise respondent that the test results could be used against him in court, no one would seriously contend that this failure to warn would make the test results inadmissible had respondent chosen to submit to the test. Cf. Schneckloth v. Bustamonte, 412 U. S. 218 (1973) (knowledge of right to refuse not an essential part of proving effective consent to a search).
Since the State wants the suspect to submit to the test, it is in its interest fully to warn suspects of the consequences of refusal. We are informed that police officers in South Dakota now warn suspects that evidence of their refusal can be used against them in court. Tr. of Oral Arg. 16.
this case, the Court has no power to reverse the judgment of the South Dakota Supreme Court, because its decision rests on an adequate and independent state ground. I therefore cannot join the Court's opinion.
"whether SDCL 32-23-10.1 is a violation of Neville's federal and state constitutional privilege against self-incrimination. U.S.Const. Amend. V; S.D. Const. art. VI, § 9."
"We hold that evidence of the accused's refusal to take a blood test violates the federal and state privilege against self-incrimination, and therefore SDCL 32-2310.1 is unconstitutional."
Id. at 726. Thus, the South Dakota Supreme Court unambiguously held that the statute violated the State Constitution. That holding is certainly adequate to support its judgment, and is beyond our power to review.
on our agreement with its interpretation of the Fifth Amendment to the United States Constitution. [Footnote 2/2] There is no general presumption of federal law, no general presumption of state law, and no specific language in the opinion below to suggest that the South Dakota Court harbored such an opinion.
"This court is the final authority on interpretation and enforcement of the South Dakota Constitution. We have always assumed the independent nature of our state constitution regardless of any similarity between the language of that document and the federal constitution."
"[W]e will not review a judgment of a state court that rests on an adequate and independent ground in state law. Nor will we review one until the fact that it does not do so appears of record."
Herb v. Pitcairn, 324 U. S. 117, 324 U. S. 128 (1945). Accord, Jankovich v. Indiana Toll Road Comm'n, 379 U. S. 487 (1965); Honeyman v. Hanan, 300 U. S. 14, 300 U. S. 18-19 (1937); Fox Film Corp. v. Muller, 296 U. S. 207 (1935); Lynch v. New York ex rel. Pierson, 293 U. S. 52 (1934); McCoy v. Shaw, 277 U. S. 302 (1928); Petrie v. Nampa and Meridian Irrigation District, 248 U. S. 154, 248 U. S. 157 (1918); Enterprise Irrigation District v. Farmers Mutual Canal Co., 243 U. S. 157, 243 U. S. 163-166 (1917); Eustis v. Bolles, 150 U. S. 361 (1893); Murdock v. Memphis, 20 Wall. 590 (1875).
"[W]e would have jurisdiction to review only if the federal ground had been the sole basis for the decision, or the State Constitution was interpreted under what the state court deemed the compulsion of the Federal Constitution."
(Emphasis in original) (footnote omitted).
"[O]ur power is to correct wrong judgments, not to revise opinions. We are not permitted to render an advisory opinion, and if the same judgment would be rendered by the state court after we corrected its views of federal laws, our review could amount to nothing more than an advisory opinion."
Herb v. Pitcairn, supra, at 324 U. S. 126. Accord, Minnick v. California Dept. of Corrections, 452 U. S. 105, 452 U. S. 120-123 (1981); Rescue Army v. Municipal Court, 331 U. S. 549, 331 U. S. 568-569 (1947); United States v. Hastings, 296 U. S. 188, 296 U. S. 193 (1935).
The policy of avoiding advisory opinions on federal constitutional issues is a consistent theme throughout our jurisprudence. Paschall v. Christie-Stewart, Inc., 414 U. S. 100 (1973) (per curiam), is especially instructive. In that case, our independent review of the record turned up a state ground supporting the Supreme Court of Oklahoma's judgment that had not even been mentioned in the state court's opinion. Observing that, if the argument proved solid, "any decision by this Court would be advisory and beyond our jurisdiction," we remanded for analysis of the state law claim. Id. at 414 U. S. 102.
Even in cases arising through the federal courts, we have always been alert to opportunities to avoid federal constitutional issues by means of a state law disposition. E.g., Mills v. Rogers, 457 U. S. 291, 457 U. S. 302-306 (1982); City of Mesquite v. Aladdin's Castle, Inc., 455 U. S. 283, 455 U. S. 294-295 (1982); Siler v. Louisville & Nashville R. Co., 213 U. S. 175 (1909). See generally Hagans v. Lavine, 415 U. S. 528, 415 U. S. 546-547, and nn. 12-13 (1974).
The burden is on the petitioner or appellant to establish our jurisdiction. We have therefore regularly dismissed cases when the state judgment might have rested on an independent and adequate state ground. E.g., Durley v. Mayo, 351 U. S. 277, 351 U. S. 285 (1956); Stembridge v. Georgia, 343 U. S. 541, 343 U. S. 547 (1952); Lynch v. New York ex rel. Pierson, supra; Johnson v. Risk, 137 U. S. 300 (1890).
The South Dakota Supreme Court was speaking on remand from this Court. The state court had previously held certain police conduct unconstitutional, relying solely on the Fourth Amendment to the Federal Constitution. State v. Opperman, 89 S.D. 25, 228 N.W.2d 152 (1975). This Court had reversed. South Dakota v. Opperman, 428 U. S. 364 (1976). The passage in text is excerpted from the South Dakota Supreme Court's reaffirmation of the rationale of its prior opinion, relying on the State Constitution. In reaching its conclusion, the court noted that the language of the relevant state provision "is almost identical to that found in the Fourth Amendment," 247 N.W.2d at 674, and was unmoved by the prosecutor's observation that the defendant had not argued in his first appeal that state and federal law were different, id. at 675.
"This footnote indicates that Schmerber was decided in light of the more liberal definition of 'evidence' as used in our state constitution. Since the Fifth Amendment of the U.S. Constitution is broad enough to exclude this evidence, there is no need to draw a distinction at this time between S.D. Const. art. VI, § 9 and the Fifth Amendment of the U.S. Constitution."
312 N.W.2d at 726, n.
"We hold, therefore, that a random stop of a motorist [absent reasonable suspicion] is constitutionally impermissible and violative of the Fourth and Fourteenth Amendments to the United States Constitution."
In cases where an apparent adequate state ground was arguably not independent, this Court has occasionally vacated the state court judgment and remanded for clarification of the basis for the decision. E.g., Air Pollution Variance Board v. Western Alfalfa Corp., 416 U. S. 861, 416 U. S. 866 (1974); California v. Krivda, 409 U. S. 33 (1972); Mental Hygiene Dept. v. Kirchner, 380 U. S. 194 (1965); Minnesota v. National Tea Co., 309 U. S. 551 (1940); State Tax Comm'n v. Van Cott, 306 U. S. 511 (1939). Cf. Herb v. Pitcairn, 324 U. S. 117 (1945) (case held while parties sought a certificate from the state court clarifying the basis for judgment). The Court should, at the very least, follow that course today.
"[I]n cases where the answer is not clear to us, it seems consistent with the respect due the highest courts of states of the Union that they be asked, rather than told, what they have intended."
Id. at 324 U. S. 127-128.
Some of us have pointed out that even this practice may be overused, because it "tak[es] from appellants the normal burden of demonstrating that we have jurisdiction and plac[es] it on the Supreme Court of [the State]." Philadelphia Newspapers, Inc. v. Jerome, 434 U. S. 241, 434 U. S. 244 (1978) (REHNQUIST, J., joined by STEVENS, J., dissenting). See also Department of Motor Vehicles of California v. Rios, 410 U. S. 425, 410 U. S. 427-430 (1973) (Douglas, J., joined by BRENNAN, Stewart, and MARSHALL, JJ., dissenting).


The purpose of this information is informative, and does not represent an exhaustive list of tobacco-related state or federal laws and regulations.
On April 22, 2014, Governor Jan Brewer signed House Bill 2674 (“HB2674”), which will take effect on July 24, 2014. HB2674 makes several changes to A.R.S. §§ 44-7101 (the “Escrow Statute”) and 44-7111 (the “Directory Statute”).
In short, while the payment of state or tribal excise remains a means for calculating “units sold”, the new definition also captures sales on which state or tribal excise tax was not paid.
HB2674 clarifies, codifies, and modifies various parts of the Directory Statute. First, HB2674 amends the Directory Statute to require that all certifications submitted pursuant to the Directory Statute are to be submitted only to AGO.
Second, HB2674 amends Section 3(a) of the Directory Statute to clarify that, if a certification is rejected by AGO because of incompleteness or inaccuracy, the tobacco product manufacturer (“TPM”) cannot cure the defect by providing supplemental documentation. Instead, the defect can only be cured by the TPM submitting a new certification to AGO.
Third, HB2674 amends section 3(a)(2) of the Directory Statute to codify that each NPM shall include in its certification a list of all of Arizona’s residential and nonresidential distributors that the NPM sold its cigarettes to or that the NPM has reason to believe purchased or received any of its cigarettes. This requirement applies to the current calendar year and the preceding calendar year. Section 3(a)(2) is further amended to make expressly clear that an NPM must submit a supplemental certification to AGO if it wishes to request any additions or modifications to its brand families. Lastly, section 3(a)(2) is amended to clarify that NPMs must conform to sections 3(c) and 6(d) of the Directory Statute until after the Directory modification request is approved by AGO and the alteration is reflected on the Directory that is published on AGO’s website.
Fourth, HB2674 adds section 3(a)(3)(e) of the Directory Statute to codify that, unless the NPM or its affiliate is a licensed Arizona tobacco distributor, NPMs must certify that all sales or shipments made by the NPM or its affiliates within or into Arizona are made to a tobacco distributor that is licensed in Arizona.
Fifth, HB2674 adds section 3(a)(3)(f) to the Directory Statute. The new provision requires NPMs to submit all other information or materials that are specifically authorized by the Directory Statute or by AGO in the course of enforcing the Directory Statute.
Sixth, HB2674 adds section 3(a)(6) to the Directory Statute. The new provision clarifies that all TPMs that are not listed on the Directory must submit an initial certification that is governed by the same requirements and review process as its annual certification counterpart. Importantly, a TPM’s cigarettes cannot be legally stamped, sold or even possessed for sale in Arizona until after the request to be added to the Directory has been approved by AGO and the addition is reflected on the Directory itself.
Seventh, HB2674 amends section 3(b)(1) of the Directory Statute to reinforce that AGO shall not include or retain in the Directory the name or brand family of any NPM that fails to comply with any provision of the Directory Statute, unless AGO determines that the noncompliance has been cured to the satisfaction of AGO.
Eighth, HB2674 amends section 3(c) of the Directory Statute to clarify that it is unlawful to possess for sale any cigarette not listed on the Directory, including cigarettes for sale within or outside of Arizona. In other words, irrespective of where the cigarettes will be sold, it is illegal to possess for sale in Arizona cigarettes not listed on the Directory.
Ninth, HB2674 amends section 3(d) of the Directory Statute to require that every NPM on the Directory post a bond for the benefit of Arizona. Section 3(e) also requires that NPMs post the bond ten days in advance of each quarter as a condition of being listed on the Directory. Furthermore, section 3(e) specifies that the amount of the bond will be the greater of (i) the greatest required escrow amount due from the NPM or its predecessor for any of the twelve preceding calendar quarters or (ii) fifty thousand dollars. Finally, section 3(e) is amended to require that NPMs submit its bond certifications as an attachment to an initial, annual, or supplemental certification as required by the Directory Statute.
Tenth, HB2674 amends section 3(h) of the Directory Statute to require that all NPMs submit the importer declaration required by section 3(h) as an attachment to an initial, annual, or supplemental certification as required by the Directory Statute.
Eleventh, HB2674 Section 5(a) of the Directory Statute to require that DOR review the monthly distributor tobacco reports for completeness and accuracy.
The above should be considered a summary of the HB2674 amendments to the Directory Statute. Please read HB2674 in its entirety for the specific language of each new law.
On June 19, 2013, Governor Jan Brewer signed Senate Bill 1312 (“SB1312”), effective September 13, 2013, which includes A.R.S. § 13-3711, a new law regarding the use of RYO machines, as well as several changes to A.R.S. §§ 44-7101 (the “Escrow Statute”) and 44-7111 (the “Directory Statute”).
SB1312 creates a legal presumption that a RYO rolling machine is being used for commercial purposes if it is located in a nonresidential premise. In order to possess or use the RYO machine, operators must receive a federal manufacturer’s license (See TTB.gov) and comply with all applicable federal laws (e.g., proper packaging, flavor prohibitions, warning labels, ingredient list, etc…) and State laws. Please see DOR’s LTN12-01 (available on www.AZDOR.gov/business/LuxuryTax.aspx), setting forth the applicable State laws that must be complied with, such as the Directory Statute and the State Fire Marshal’s Fire Standards (A.R.S. §§ 41-2170 – 41-2170.08). Until all of these existing laws are complied with as is required of other cigarette manufacturers, the RYO machine cannot be operated, nor can any rolled cigarettes be possessed for sale or sold at the distributor or retail level. Violators of this law will be subject to criminal and civil penalties, including a fine up to $50,000 and seizure and subsequent forfeiture of the RYO machine and related materials. See A.R.S. § 13-3711.
Units sold means the number of individual cigarettes sold in the state by the applicable tobacco product manufacturer (whether directly or through a distributor, retailer or similar intermediary or intermediaries) during the year in question, as measured by State tobacco excise taxes collected or pre-collected by the State and Tribal luxury taxes collected or pre-collected by an Indian Tribe. The department of revenue shall promulgate such regulations as are necessary to ascertain the amount of any such tax collected or pre-collected on the cigarettes of such tobacco product manufacturer for each year. The term units sold does not include cigarettes described in section 42-3304, subsection A, paragraphs 2 and 3.
A.R.S. § 42-3304(A)(2) & (3) states: “The tax levied by this article does not apply to cigarettes, cigars, smoking tobacco, plug tobacco, snuff and other forms of tobacco: . . . 2. That are sold by an Indian tribe, or by a federally licensed Indian trader, on an Indian reservation to Indians who are enrolled members of the Indian tribe for whose benefit the Indian reservation was established. 3 That are exempt from tax under 26 United States Code section 5701 and that are distributed according to federal regulations.” Further, “Tribal luxury taxes” is defined as “those taxes referenced in section 42-3302, subsection C.” A.R.S. § 44-7101(2)(j).
The exceptions outlined in A.R.S. § 42-3304(A)(2) & (3) represent very few cigarettes distributed in Arizona; therefore, the practical effect of this change to Arizona law is that most cigarettes and RYO distributed into Arizona are now units sold. For example, all cigarettes affixed with a red stamp (and the RYO equivalent) are now units sold. Please remember that Escrow Statute compliance is required on all units sold. AGO closely monitors distributors and NPMs to ensure compliance with the Escrow Statute.
The second major change to the Escrow Statute is chaptered at A.R.S. § 44-7101(3)(c). This section allows NPMs to assign their rights to escrowed funds to the State via AGO. The Escrow Statute did not previously include an assignment provision. The new law allows the State to take possession of the escrowed funds in the event the NPM no longer wishes to maintain the account. However, until such time as AGO formally agrees to an assignment, the account must remain properly funded and maintained.
The Directory Statute changes are chaptered at A.R.S. § 44-7111(3)(d) through (j). Compliance with these new provisions is required in order for a NPM to remain in or be included on the Arizona Cigarette Directory.
First, in certain situations outlined in the new law, the State requires NPMs to post a bond of at least $50,000 against which outstanding escrow may be collected in the future. See A.R.S. § 44-7111(3)(d) – (g).
Second, a NPM located outside the United States is now required to provide AGO with a declaration from each of its importers that the importer accepts joint and several liability with the NPM for making the required escrow deposits under the Escrow Statute. See A.R.S. § 44-7111(3)(h).
Third, the grounds upon which AGO can refuse inclusion or retention of a NPM on the Arizona Cigarette Directory have been expanded. For example, NPMs who refuse to certify that they are subject to A.R.S. § 44-7101 or A.R.S. § 36-798.06, including on the basis of sovereign immunity, may be refused inclusion or retention on the Arizona Cigarette Directory. Additionally, NPMs may be refused inclusion or retention on the Arizona Cigarette Directory who: (1) provide incorrect, false or misleading statements on any Certification to the State pursuant to the Escrow Statute or Section 3 of the Directory Statute, or (2) were not or are not in compliance with any State or Federal laws. See A.R.S. § 44-7111(3)(i) - (j).
Pursuant to A.R.S 36-798.06 ("Delivery Sales Statute") it is unlawful for any person, other than a person licensed under A.R.S. § 42-3201, or a retailer ordering from a person so licensed, to order or purchase, or cause to be ordered or purchased, a tobacco product via mail, phone, the Internet, or any electronic means (except for pipe tobacco and cigars). Simply put, under this law, Arizona consumers must buy tobacco products in a face-to-face transaction at a retail establishment (except for pipe tobacco and cigars). Penalties for violating this law include, among others, a civil penalty not to exceed $5,000 per violation, and each order or purchase of tobacco products constitutes a separate violation. Further, a violation of this law constitutes a felony. A.R.S. § 36-798.06(H).
Moreover, a Common Carrier shall not knowingly transport a tobacco product for a person who is in violation of the Delivery Sales Statute. A.R.S. § 36-798.06(B). This means Common Carriers will no longer be permitted to deliver tobacco products directly to consumers (except for pipe tobacco and cigars). Penalties for violating this law include, among others, a civil penalty not to exceed $5,000 per violation, and each order or purchase of tobacco products constitutes a separate violation. Further, a violation of this law constitutes a felony. A.R.S. § 36-798.06(H). Please contact the Arizona Department of Revenue (www.azdor.gov) with questions regarding proper submission of taxes on purchases of pipe tobacco and cigars made online.
For more information, please see the AGO press release here.
Pursuant to A.R.S. § 44-7111(5)(g) “A tobacco product manufacturer that is subject to the requirements of section 3(a)(2) [of the Directory Statute] shall make the required escrow deposits in quarterly installments during the year in which the sales covered by the deposits are made.” Thus, NPMs are required to make four quarterly escrow deposits, and those deposits are to be based on the units sold from the corresponding quarter. The below chart provides a breakdown of the year by quarter along with the date by which the deposit and certification are due.
Please be aware that the annual Escrow Statute compliance certification requirement remains in effect as well as all other requirements of the Escrow Statute (A.R.S. § 44-7101) and Directory Statute.
A.R.S. § 36-798.04 states “[a] package or other container of cigarettes that contains fewer than twenty cigarettes . . . may be distributed or sold within this state only at a facility that is licensed pursuant to § 4-209, subsection B, paragraph 6, and that admits only people who are at least twenty-one years of age.” A.R.S. § 36-798.04(A)(1) & (C). A violation of A.R.S. § 36-798.04 is a criminal offense. See A.R.S. § 36-798.04(D).
A.R.S. § 42-3210 (Arizona’s “Gray Market Statute”) prohibits the affixing of an Arizona tax stamp to any cigarette package in violation of that statute. This law imposes significant requirements upon cigarette distributors. For example, Subsection (A)(5) of the Gray Market Statute prohibits the affixing of an Arizona tax stamp to any cigarette package violating specific federal laws, including: (i) 15 USC § 1335(a) of the Federal Cigarette Labeling and Advertising Act; and (ii) 19 USC §§ 1681-1681(b). In many instances, violations of these statutes will render an entire brand, and not just an individual package, ineligible for stamping. These laws impose significant requirements upon importers and manufacturers of cigarettes and should be reviewed in their entirety. The Department of Revenue may, among other things: (i) revoke any license issued to a Distributor who sells or offers for sale cigarette packages . . . stamped in violation of the Gray Market Statute; and (ii) seize and destroy packages of cigarettes that are stamped in violation of the Gray Market Statute. A.R.S. § 42-3210(B)(1) & (2). Violations of the Gray Market Statute also constitute violations of the Consumer Fraud Act, which allows the Attorney General to, among other things: (i) “impound . . . merchandise material”; (ii) seek injunctive relief, enjoin the stamping for sale of non-compliant cigarettes; and (iii) prohibit a Distributor from engaging in a specified trade or occupation. A.R.S. §§ 44-1524(A)(3) & (4) & 44-1528(A). Finally, selling or offering for sale cigarettes that are in violation of the Gray Market Statute constitutes a class 2 misdemeanor.
Under the Arizona Reduced Cigarette Ignition Propensity Act, all cigarettes sold in the State of Arizona must comply with the State Fire Marshal’s Fire Standards pursuant to A.R.S. § 41-2170 through 41-2170.08. Any manufacturer who intends for its cigarettes to be sold must have its cigarettes listed as compliant in the Arizona State Fire Marshal Directory of Fire Standards Compliant Cigarettes. A manufacturer, wholesaler, agent or other person or entity that knowingly sells or offers to sell cigarettes, other than through retail sale, in violation of § 41-2170.01 is subject to a civil penalty of not to exceed one hundred dollars for each pack of cigarettes sold or offered for sale. This penalty shall not exceed twenty-five thousand dollars during any thirty-day period. A retailer who knowingly sells or offers to sell cigarettes in violation of § 41-2170.01 is subject to a civil penalty of not to exceed one hundred dollars for each pack of cigarettes sold or offered for sale. This penalty shall not exceed one thousand dollars during any thirty-day period. A.R.S. § 41-2170.04.
For information on Fire Standards Compliant Cigarettes click here.
The Prevent All Cigarette Trafficking ("PACT") Act, 15 U.S.C. §§ 375 et seq. imposes additional requirements on any person who sells, ships, or transfers or offers to sell, ship, or transfer tobacco products in interstate commerce. For more information, click here.
The Federal Cigarette Labeling and Advertising Act (FCLAA), 15 U.S.C. §1335a(a), in part requires that each person who manufactures, packages, or imports cigarettes annually submit to the Department of Health and Human Services (HHS) a list of ingredients added to tobacco in the manufacture of cigarettes (Ingredient Report). The Centers for Disease Control and Prevention (CDC), Office on Smoking and Health (OSH), has been delegated the responsibility of implementing these provisions. Cigarettes in violation of this federal law are also in violation of Arizona’s aforementioned Gray Market Statute (see the above information to learn how this affects you).
The Federal Food, Drug, and Cosmetic Act (“FDCA”) (21 U.S.C. 301 et seq.), as amended by the Family Smoking Prevention and Tobacco Control Act (“FSPTCA”) (Public Law 111-31), established a tobacco standard special rule for cigarettes that became effective on September 22, 2009. All products that meet the description in § 907(a)(1)(A) of the FSPTCA are banned. Section 907(a)(1)(A) states: “a cigarette or any of its component parts (including the tobacco, filter, or paper) shall not contain, as a constituent (including a smoke constituent) or additive, an artificial or natural flavor (other than tobacco or menthol) or an herb or spice, including strawberry, grape, orange, clove, cinnamon, pineapple, vanilla, coconut, licorice, cocoa, chocolate, cherry, or coffee, that is a characterizing flavor of the tobacco product or tobacco smoke.” Note that § 900(3) of the FSPTCA defines “cigarette” as including “tobacco, in any form, that . . . is likely to be offered to, or purchased by, consumers as a cigarette or as roll-your-own tobacco.” Loose tobacco intended to be used in cigarettes or as roll-your-own tobacco fits this definition of “cigarette” and therefore may not be flavored with a characterizing flavor. To find more information regarding the FSPTCA, see the FDA website located at: http://www.fda.gov/.
In addition to the requirements detailed here, manufacturers, importers, and distributors of tobacco products may have other legal obligations to consider. Although not an exhaustive list, other federal agencies that may have applicable laws include the Alcohol and Tobacco Tax and Trade Bureau, U.S. Customs, and the Federal Trade Commission.