City of Westerville v. Cunningham

• Decision Date: 10 July 1968
• Docket Number: No. 41377,41377
• Citation: 239 N.E.2d 40,15 Ohio St.2d 121
• Parties: , 44 O.O.2d 119 CITY OF WESTERVILLE, Appellant, v. CUNNINGHAM, Appellee.
• Court: Ohio Supreme Court

Page 121

15 Ohio St.2d 121

239 N.E.2d 40, 44 O.O.2d 119

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

No. 41377.

Supreme Court of Ohio.

July 10, 1968.

Syllabus by the Court

1. The refusal of one accused of intoxication to take a reasonably reliable chemical test for intoxication may have probative value on the question as to whether he was intoxicated at the time of such refusal. (Columbus v. Mullins, 162 Ohio St. 419, 123 N.E.2d 422, distinguished.)

2. One accused of intoxication has no constitutional right to refuse to take a reasonably reliable chemical test for intoxication. (Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908, followed.)

3. The admission of evidence that one accused of intoxication refused to take a reasonably reliable chemical test for intoxication and comment thereon by counsel, do not violate any constitutional privilege against self-incrimination. (Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, distinguished.)

Defendant was found guilty by a jury in the Columbus Municipal Court of operating a motor vehicle while intoxicated. The judgment of conviction rendered on that verdict was reversed by the Court of Appeals which certified its judgment to this court as being in conflict with the judgment of the Court of Appeals for Wayne County in the case of State v. Gatton, 60 Ohio App. 192, 20 N.E.2d 265.

Metz, Bailey & Norris and Alan E. Norris, Westerville, for appellant.

Jerry Weiner, Columbus, for appellee.

TAFT, Chief Justice.

The first ground given by the Court of Appeals opinion (12 Ohio App.2d 34, 230 N.E.2d 671) for its decision is that the evidence of defendant's refusal to take a chemical test for intoxication would have no probative value. Some courts have so held (annotation, 87 A.L.R.2d 370, at 386) and stated that the refusal of an accused to take such a test may have no relation to the question of his guilt or innocence. State v. McCarthy (1960), 259 Minn. 24, 104 N.W.2d 673, 87 A.L.R.2d 360; Engler v. State (1957 Okl.Cr.), 316 P.2d 625.

Such a refusal may sometimes have no such relation, but in the instant case defendant was asked if he had any reason for his refusal, and he gave no reason which would indicate that his refusal had no relation to the question of his guilt or innocence. Thus, this case differs from City of Columbus v. Mullins (1954), 162 Ohio St. 419, 123 N.E.2d 422, where the defendant refused to take such a test unless his own physician was present and there was no showing that such physician was not available. See also 87 A.L.R.2d 370, at 384.

Where a defendant is being accused of intoxication and is not intoxicated, the taking of a reasonably reliable chemical test for intoxication should establish that he is not intoxicated. On the other hand, if he is intoxicated, the taking of such a test will probably establish that he is intoxicated. Thus, if he is not intoxicated, such a test will provide evidence for him; but, if he is intoxicated, the test will provide evidence against him. Thus, it is reasonable to infer that a refusal to take such a test indicates the defendant's fear of the results of the test and his consciousness of guilt, especially where he is asked his reason for such refusal and he gives no reason which would indicate that his refusal had no relation to such consciousness of guilt.

We conclude that, in the instant case, the defendant's refusal to take a chemical test for intoxication would have probative value on the question as to whether he was intoxicated at the time. This conclusion is supported by the recent decision in State v. Cary (1967), 49 N.J. 343, 230 A.2d 384. See People v. Sudduth (1966), 65 Cal.2d 543, 55 Cal.Rptr. 393, 421 P.2d 401, and annotation, 87 A.L.R.2d 370 at 384 et seq. See also People v. Ellis (1966), 65 Cal.2d 529, 55 Cal.Rptr. 385, 421 P.2d 393.

We recognize that this conclusion is necessarily based upon the additional conclusion that the results of such a test would be reasonably reliable on the issue of intoxication. Defendant has not raised any question about such additional conclusion, perhaps because such tests are today generally recognized as being reasonably reliable on the issue of intoxication when conducted with proper equipment and by competent operators. In presenting this case, both parties apparently proceeded on the assumption that the proposed test that the defendant refused to take would be reasonably reliable on the issue of intoxication of the one being tested. Hence, we express no opinion on the question as to who would otherwise have the burden of proving such reliability. See Crawley v. State (Tenn.1967), 413 S.W.2d 370.

The other ground given by the Court of Appeals for its decision, and the principal contention of defendant, is that the admission of evidence that defendant refused to take a chemical test for intoxication would violate the privilege against self-incrimination of defendant, given to him by the Fifth and Fourteenth Amendments to the United States Constitution, as interpreted by Griffin v. State of California (1965), 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106; Malloy v. Hogan (1964), 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653; and Miranda v. State of Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

Unlike in Griffin v. State of California, supra, the admission of evidence of defendant's refusal to take a chemical test for intoxication and comment by counsel thereon would not dilute any constitutional right of defendant. As stated by Traynor, Chief Justice, in People v. Sudduth, supra (65 Cal.2d 543), at page 546, 421 P.2d at page 403, with respect to reliance on...