Engler v. State, A-12477

CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
Citation316 P.2d 625
Docket NumberNo. A-12477,A-12477
PartiesDale Eugene ENGLER, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error
Decision Date02 October 1957

1. Unless otherwise explained the term 'Sobriety Test' is synonymous and interchangeable with 'Drunkometer' or other mechanical or scientific method of ascertaining alcoholic content of the body.

2. Permitting evidence in chief, over objection of the defendant, of his refusal to take 'Sobriety Test' is prejudicial error and is reversible upon review.

Appeal from the Court of Common Pleas, Oklahoma County; Carl Traub, Judge.

The plaintiff in error, Dale Eugene Engler, hereinafter referred to as the defendant, was convicted in the Court of Common Pleas of Oklahoma County of the crime of driving a motor vehicle while under the influence of intoxicating liquor, and appeals. Reversed.

Bamberger & McBride, Oklahoma City, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Sam Lattimore, Asst. Atty. Gen., for defendant in error.

NIX, Judge.

The defendant was charged by information in the Court of Common Pleas with the offense of driving a motor vehicle while under the influence of intoxicating liquor; tried before a jury of six, who rendered a verdict of guilty, fixing the punishment at 30 days in the county jail and a fine of $250.

The defendant contends that the trial court committed error in permitting the state to prove in chief that the defendant had refused to submit to a 'sobriety test.' The testimony reveals that Patrolman Garibaldi was interrogated by the county attorney as follows:

'Q. Did you give this man a sobriety test of any type? A. No, I did not.

'Mr. Bamberger: If the Court please, we are going to object to that and ask that it be stricken and ask at this time for a mistrial. A very recent case holds that it is prejudicial error to ask that question in the presence of the jury. And we ask for a mistrial at this time.

'The Court: I will overrule your motion for a mistrial and allow you exceptions, and I will overrule your objection to the question and allow you an exception.

'Q. All right, you may answer the question, please.

'The Court: He answered it.

'Q. You did not give him a test?

A. I did not give him a test, no, sir.

'Q. Did you offer one to him? A. I did.

'Mr. Bamberger: If the court please, we make the same objection and once again repeat our request for a mistrial.

'The Court: Overruled and allow exceptions.

'A. Repeat the question.

'Q. Did you offer him a test? A. I did.

'Q. What was his answer? A. He said he would see me in hell before he took one.

'Mr. Bamberger: If the court please, we renew our objection to the question and answer; we ask that it be stricken from the record and that the jury be instructed to disregard it and we ask the court to declare a mistrial in this case.

'The Court: Overruled and allow exceptions.'

This same question was passed on by this court in the recent case of Duckworth v. State, 309 P.2d 1103, wherein it was said:

'In a criminal case, where the accused is charged with being intoxicated and is asked by the state to submit to an intoximeter test to determine the amount of blood alcohol, it is the accused's statutory right, 22 O.S.1951 § 701 to refuse to submit thereto. And, it is the mandatory duty of this court to reverse a conviction where the state is permitted to offer proof in chief showing the accused's refusal and the end results of such a test, had the accused submitted thereto, and to comment thereon.'

The Duckworth case was handed down by this court with a divided opinion, Judge Brett and Judge Jones adopting the opinion, Judge Powell dissenting. Since then, articles have been written in legal publications discussing the pro's and con's of its soundness. It has been advocated that the legislature should enact legislation making it mandatory for all persons arrested for drunk driving to submit to a drunkometer test. A legislative committee was recently convened in Oklahoma City to witness a demonstration as to the accuracy of said tests for the purpose of considering proposed legislation to this effect. The tests were inconclusive and the mechanical apparatus being evidently fouled by a bad tube, reflected ridiculous results. The officer in charge of the demonstration was demoted as a result of what his superiors termed negligence in properly checking the equipment before said tests were given. In the opinion of your writer, this gave new strength to the holding in the Duckworth case. No doubt many persons arrested on suspicion of drunk driving would be hesitant, though stone sober, to submit to any one of the scientific or mechanical tests as it is well established that the test is no better than the operator of said equipment. The courts have so held in refusing to recognize the result of the numerous devices commonly known as 'lie dector tests.' The defendant may be reluctant to submit to such tests for good reasons other than his guilt. The majority of this court is of the opinion that such refusal should not be held against the defendant. If evidence of his refusal...

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15 cases
  • State v. Jackson, 80-405
    • United States
    • United States State Supreme Court of Montana
    • December 14, 1981
    ...the testers); State v. Paschal (1961), 253 N.C. 795, 117 S.E.2d 749 (defendant feared he would have to pay for the test); Engler v. State (Okl.Crim.1957), 316 P.2d 625 (bona fide doubts as to reliability of test); and Columbus v. Mullins (1954), 162 Ohio St. 419, 123 N.E.2d 422 (defendant d......
  • Hill v. State
    • United States
    • Supreme Court of Alabama
    • January 12, 1979
    ...of Columbus v. Mullins, 162 Ohio St. 419, 123 N.E.2d 422 (1954) (unwilling unless personal physician conducted test); Engler v. State, 316 P.2d 625 (Okl.Crim.App.1957) (indication of defendant's fear that test results are inaccurate). At least one case has held evidence of refusal inadmissi......
  • Lanford v. People, 21336
    • United States
    • Supreme Court of Colorado
    • January 10, 1966
    ...E. g. People v. Knutson, 17 Ill.App.2d 251, 149 N.E.2d 461 (1958); Duckworth v. State (Okla.Crim.1957) 309 P.2d 1103 and Engler v. State, (Okla.Crim.1957) 316 P.2d 625; also see, People v. Stratton, 286 App.Div. 323, 143 N.Y.S.2d 362 (1955), aff'd, 1 N.Y.2d 664, 150 N.Y.S.2d 29, 133 N.E.2d ......
  • Harris v. State, F-87-965
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • May 9, 1989
    ...inconsistent with this opinion, they are expressly overruled: Duckworth v. State, 309 P.2d 1103 (Okla.Crim.App.1957); Engler v. State, 316 P.2d 625 (Okla.Crim.App.1957); Jackson v. State, 397 P.2d 920 (Okla.Crim.App.1964); Gay v. State, 449 P.2d 906 (Okla.Crim.App.1969); Simmons v. State, 4......
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