Bailey v. City of Tulsa, A--16069

• Decision Date: 24 November 1971
• Docket Number: No. A--16069,A--16069
• Citation: 491 P.2d 316
• Parties: Jack Edward BAILEY, Plaintiff in Error, v. CITY OF TULSA, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 316

491 P.2d 316

Jack Edward BAILEY, Plaintiff in Error, v. CITY OF TULSA, Defendant in Error.

No. A--16069.

Court of Criminal Appeals of Oklahoma.

Nov. 24, 1971.

Syllabus by the Court

Under the Oklahoma Implied Consent Law, 47 O.S.Supp.1970, §§ 751--760, the motorist is not compelled in violation of his right against self-incrimination to give evidence which will tend to incriminate him if he elects to take a blood or breath test for intoxication as he consents to the admission in court of the result of such a test; and revocation of the privilege to operate a motor vehicle for six months upon refusal to take a test for intoxication does not compel the defendant to give evidence in violation of his right against self-incrimination.

An appeal from the Municipal Court of the City of Tulsa; R. Hayden Downie, Judge.

Jack Edward Bailey was convicted for operating a motor vehicle while under influence of intoxicating liquor in the Municipal Court of the City of Tulsa; he was sentenced to a term of ten days in the city jail, and a fine of $75.00, and he appeals. Affirmed.

Jay D. Dalton, Ollie W. Gresham, Tulsa County, for plaintiff in error.

Larry Derryberry, Atty. Gen., Paul Crowe, Asst. Atty. Gen., John Jack Morgan, Chief Prosecutor, City of Tulsa, for defendant in error.

BRETT, Judge:

Plaintiff in Error, Jack Edward Bailey, hereinafter referred to as defendant, was convicted in the Municipal Court of the City of Tulsa, Case No. 107889, for the offense of operating a motor vehicle while under influence of intoxicating liquor, with punishment fixed at a fine of $75.00, 10 days in the city jail, and court costs. ¹ Judgment and sentence was imposed on April 15, 1970, and this appeal perfected therefrom.

The conviction is based on a stipulation of facts. On November 27, 1969, while driving an automobile on a public street in the City of Tulsa, defendant ran into the rear of another automobile. The accident was investigated by the police, who advised defendant of his constitutional rights. The police further advised defendant he had a choice of taking either a breath test or blood test, and that if the result indicated intoxication it could be used against him in court. Defendant was further advised that he had a right to refuse to take either test, but if he refused to take either test his operator's license could be suspended or revoked for a period of six months. Defendant then elected to take the breath test and the result was .20.

Defendant contends he was convicted as a result of 47 O.S.Supp.1970, §§ 751--760, referred to as the Implied Consent Law, which defendant argues is unconstitutional as violating his right against self-incrimination under the United States and Oklahoma Constitutions.

Under the terms of the Implied Consent Act, § 751, it provides that a person operating a motor vehicle upon the public streets or highways shall be deemed to have given consent to a test of his blood or breath to determine alcoholic content. Section 753 provides if a conscious person under arrest refuses to submit to chemical testing, none shall be given, but the Commissioner of Public Safety shall revoke his license to drive for a period of six months. Section 754 provides for a hearing by the Commissioner for a person whose privilege to drive has been so revoked, which is appealable to the District Court. Section 756 provides that upon trial of any criminal action or proceeding arising out of acts alleged to have been committed by a person while driving or in actual physical control of a motor vehicle while under the influence of intoxicating liquor, evidence of the amount of alcohol in the person's blood as shown by the blood or breath test is admissible. Fifteen-hundredths of one per cent (.15) or more by weight of alcohol in the blood is prima facie evidence that the person was under the influence of intoxicating liquor.

Defendant contends the Implied Consent Law compels the defendant to take a test for intoxication, thus giving evidence against himself because of the threat of a civil sanction to revoke the privilege to drive.

The United States Constitution, Fifth Amendment, provides that no person 'shall be compelled in any criminal case to be a witness against himself.' In Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the United States Supreme Court held the chemical analysis of a defendant's blood showing intoxication was admissible and not a violation of the right against self-incrimination. The Supreme Court reasoned the blood test was physical evidence, not testimonial, and the Fifth Amendment right 'protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature.' 384 U.S. at 761, 86 S.Ct. at 1830.

However, defendant correctly argues the Oklahoma Constitutional prohibition against self-incrimination is broader in scope than the federal and not limited to testimonial evidence. The Oklahoma Constitution, Article II, § 21, provides 'No person shall be compelled to give evidence which will tend to incriminate him.' In Spencer v. State, Okl.Cr., 404 P.2d 46 (1965), this Court stated:

' * * * Article 2, Section 21 (Okl.Const.) supra, which precludes one from being compelled to give evidence against himself is broad enough to include demonstrations or acts which amounts to self-incrimination. It has been held that demonstration by an act which amounts to self-incrimination is as obnoxious to the immunity guaranteed by the Constitution, as one by words.' 404 P.2d at 47.

Quoting other authorities, the Spencer decision further stated:

'Hence, there is the well-established doctrine that the constitutional inhibition is directed not merely to the giving of oral testimony, but embraces as well the furnishing of evidence by other means than by word of mouth, the divulging, in short, of any fact which the accused has a right to hold secret.' 404 at 49.

In several decisions, this Court has held that evidence of, or comment on, a defendant's refusal to take a test for intoxication is inadmissible as it violates the right against self-incrimination. Duckworth v. State, Okl.Cr., 309 P.2d 1103 (1957); Cupp v. State, Okl.Cr., 373 P.2d 260 (1962); Jackson v. State, Okl.Cr., 397 P.2d 920 (1964); and in Cox v. State, Okl.Cr., 395 P.2d 954 (1964), it was held:

'This Court is of the opinion the results of a test such as blood tests, drunkometer, etc. taken involuntarily is inadmissible for the reason it constitutes a violation of the Bill of Rights of this State, Art. 2, § 21, which says, 'No person shall be compelled to give evidence which will tend to incriminate him. * * *' We believe this section of the Bill of Rights is broad enough to encompass more than just oral testimony.'

In still other decisions this Court has applied the rule that our...