City of Westerville v. Cunningham

• Decision Date: 24 October 1967
• Citation: City of Westerville v. Cunningham, 230 N.E.2d 671, 12 Ohio App.2d 34 (Ohio App. 1967)
• Parties: , 41 O.O.2d 89 CITY OF WESTERVILLE, Appellee, v. CUNNINGHAM, Appellant.
• Court: Ohio Court of Appeals

Page 34

12 Ohio App.2d 34

230 N.E.2d 671, 41 O.O.2d 89

CITY OF WESTERVILLE, Appellee, v.CUNNINGHAM, Appellant.

Court of Appeals of Ohio, Tenth District, Franklin County.

Oct. 24, 1967.

Syllabus by the Court

1.The fact that a person charged with operating a motor vehicle under the influence of alcohol verbally refuses to submit to a chemical test while in custody and under no legal obligation to submit is of no probative value on the issue of guilt and should not be admitted into evidence over objection.

2.Testimonial utterances made in conjunction with a request for or administration of a physical examination are distinguishable from the examination itself, and such utterances are subject to 'general Fifth Amendment principles.'

3.The fact that an accused invoked his privilege against self-incrimination by a verbal refusal to submit to a test upon the advice of his counsel cannot be used at his trial.

Alan E. Norris, City Pros., for appellee.

Jerry Weiner, Columbus, for appellant.

DUFFEY, Presiding Judge.

This is an appeal from a judgment of conviction by the Municipal Court on a charge of operating a vehicle under the influence of alcohol.Appellant was also charged with giving false information, but was acquitted by a jury.

The appeal was filed as one on questions of law and fact.An order reducing the appeal to one on questions of law only may be included in the final entry.

The principal assignment of error challenges the admission of testimony, over objection, relating to the refusal by appellant to submit to a chemical test for alcohol.

A police officer, called as a witness by the city, was asked on direct examination whether the defendant had been requested to submit to a chemical test for alcohol.Over objections repeatedly asserted, the witness testified that he did so ask the defendant, and that the defendant refused.The witness further testified that 'when I asked him why he was refusing, he said, my uncle and lawyer told me not to.I have been arrested for this before.'In closing argument, the prosecutor alluded to this evidence.

The admissibility of this testimony as part of the prosecution's case must rest on the proposition that it tends to prove an extrajudicial admission of the defendant bearing on guilt, i. e., that the fact of the refusal gives rise to an inference that defendant was probably attempting to conceal the presence of alcohol.This is difficult to accept.The defendant had no legal obligation to submit to such a test under Ohio law at that time.There was no statute imposing a duty to take a test, and no court order had been obtained.The defendant was under arrest and was in custody at the police station.A refusal under those circumstances would be to the defendant's interest regardless of guilt or innocence.We therefore cannot find that the refusal permitted the drawing of a reasonable inference of guilt.The evidence should have been excluded as having no probative value.

However, we do not wish to rest our conclusion on such a narrow ground.In our opinion, the officer's testimony violated defendant's privilege against self-incrimination.

The city argues that proof of the defendant's statements is within the recent holding of the Supreme Court in Schmerber v. California(1966), 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908.In that case, the court held that a test such as requested here does not violate the privilege against self-incrimination.The decision is not binding as to Ohio law, but it will be assumed here that the Ohio Supreme Court will choose to follow that precedent.

In Schmerber, the court carefully distinguished a physical examination from testimonial utterances made in conjunction with a request for or administration of the examination itself.The court pointedly stated that the admission of evidence of a refusal to take a test, as well as comment upon a refusal, was subject to 'general Fifth Amendment principles.'384 U.S., at 766, N. 9, 86 S.Ct. 1826.This statement of the Supreme Court referred specifically to a test for alcohol.

The court, in Schmerber, also specifically called attention to its statement in Miranda v. State of Arizona(1966), 384 U.S. 436, at 468, N. 37, 86 S.Ct. 1602, at 1625, 16 L.Ed.2d 694.In that case, the court stated:

'In accord with our decision today, it is impermissible to penalize in individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation.The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation.Cf.Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106(1965);Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653(1964);Comment, 31 U.Chi.L.Rev. 556(1964);Developments in the Law-Confessions, 79 Harv.L.Rev. 935, 1041-1044(1966).See alsoBram v. United States, 168 U.S. 532, 562, 18 S.Ct. 183, 194, 42 L.Ed.2d 568(1897).'

These principles are, of course, applicable to state courts under the Fourteenth Amendment.Malloy v. Hogan(1964), 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653.

If these principles so laid down are followed, the only point left is whether the defendant invoked his privilege.Regardless of so-called 'Miranda warnings,' it seems clear that ...