City of Columbus v. Mullins, 33878

• Decision Date: 22 December 1954
• Docket Number: No. 33878,33878
• Citation: 123 N.E.2d 422,162 Ohio St. 419
• Parties: , 55 O.O. 240 CITY OF COLUMBUS, Appellee, v. MULLINS, Appellant.
• Court: Ohio Supreme Court

Page 419

162 Ohio St. 419

123 N.E.2d 422, 55 O.O. 240

CITY OF COLUMBUS, Appellee, v. MULLINS, Appellant.

No. 33878.

Supreme Court of Ohio.

Dec. 22, 1954.

Syllabus by the Court

1. Where a person has been arrested for driving an automobile while under the influence of intoxicating liquor, and where he is requested by the police department of a municipality to submit to urine and blood tests by the department chemist and he refuses to submit to such tests unless his own physician is present, and where there is no showing that such physician is unavailable, such refusal is a reasonable one and does not lay the foundation for any inference of an admission of guilt.

2. Under such circumstances, it is prejudicial error in the trial of the accused for the prosecution to offer as evidence in chief the testimony of the police chemist as to the scientific aspects and principles of such tests, indicating that they are infallible and will disclose the guilt or innocence of one charged with being under the influence of intoxicating liquor.

On August 31, 1951, at about 7:15 p. m., appellant, Norman V. Mullins, hereinafter called defendant, was driving north on Cleveland Avenue, in the city of Columbus, on his way to visit the Ohio State Fair. In the front seat with him were his wife and father-in-law, and in the back seat were his daughter and a young woman who worked in Columbus and boarded with his family. At the same time a sergeant of police of Columbus was driving east on Eleventh Avenue, intending to turn north on Cleveland Avenue.

The sergeant testified that defendant made a left-hand turn through a red light and came around into the intersection, heading west on Eleventh Avenue, whereas defendant and those in the car with him testified that his car stalled on Cleveland Avenue while he had the green light, and that after the car started the sergeant waved him around through the red light. The sergeant had defendant stop his car, and an argument occurred as to what had happened, whereupon the sergeant placed defendant under arrest and sent for a police cruiser and wrecker. After they arrived, defendant was forced into the cruiser, the occupants of his car were compelled to get out of it, and the car was towed away by the wrecker.

Defendant was taken to police headquarters and an affidavit was filed against him, charging him with violating on ordinance of the city of Columbus, which reads as follows:

'No person who is under the influence of intoxicating liquor or alcohol shall operate any vehicle, streetcar or trackless trolley within the city of Columbus.'

Defendant was tried upon the affidavit in the Municipal Court, before a judge and jury, and was convicted and sentenced.

Upon appeal to the Common Pleas Court of Franklin County, the conviction was affirmed, and, upon appeal to the Court of Appeals, the judgment of the Common Pleas Court was affirmed, with one judge dissenting. 118 N.E.2d 178.

The cause is before this court upon the allowance of a motion to certify the record.

Additional facts are stated in the opinion.

Chalmers P. Wylie, City Atty., Malcolm M. Prine, Bush P. Mitchell, Columbus, for appellee.

Coughlin, Ogier & Lloyd, Columbus, for appellant.

STEWART, Judge.

Defendant has filed three assignments of error in this court, as follows:

1. Admission in the trial court, over objection by defendant, of opinion testimony of certain police officers, which testimony was that defendant was intoxicated or under the influence of alcohol while driving his automobile.

2. Admission, over defendant's objection, of expert testimony with reference to urine and blood tests in relation to alcoholic influence.

3. Admission of other testimony, over objection of defendant, prejudicial to him.

In reference to the first assignment of error, defendant strongly contends that, since the question whether he was under the influence of liquor while driving was the sole one for the jury to determine, it was error to allow police officers, who saw him, to testify that in their opinion he was drunk.

It is true that ordinarily opinion evidence may not be admitted when it, in effect, answers the very question as to the existence or nonexistence of an ultimate fact to be determined by the jury. Shepherd v. Midland Mutual Life Ins. Co., 152 Ohio St. 6, 87 N.E.2d 156, 12 A.L.R.2d 1250.

An opinion with reference to intoxication is probably one of the most familiar subjects of nonexpert evidence, and almost any lay witness, without having any special qualifications, can testify as to whether a person was intoxicated. It follows that, where one says that in his opinion a person is intoxicated, he is really stating it as a fact rather than an expert opinion. In any event, we do not hold that admission of such evidence is prejudicially erroneous.

With reference to the second assignment of error, a more serious question arises.

When defendant was taken to police headquarters, he was asked to submit to a urinalysis and blood test, to be given by the city police chemist, to determine whether defendant was under the influence of alcohol. He refused to submit to the tests unless his own physician was present or would give the tests. There was no showing that his physician was not readily available.

The first witness for the prosecution was the police chemist in charge of the scientific crime detection laboratory. He testified at great length with reference to his experience in making tests to determine the alcoholic content of urine and explained in minute detail the scientific aspects and principles of the tests he makes, indicating that such tests are infallible and will disclose the guilt or innocence of one charged with being under the influence of intoxicating liquor. Counsel for defendant continuously objected to the police chemist's testimony, and at its conclusion moved to strike all of it.

Was this testimony admissible, and, if not, was...