Hovious v. Riley

Citation403 S.W.2d 17
PartiesRuby HOVIOUS, Appellant, v. H. B. RILEY, as Administrator, etc., et al., Appellee.
Decision Date20 May 1966
CourtUnited States State Supreme Court (Kentucky)

James G. Sheehan, Jr., Danville, for appellant.

Jackson D. Guerrant, John L. Ward, Danville, for appellee.

MOREMEN, Chief Justice.

Appellant, Ruby Hovious, was involved in an automobile accident and civil action for damages was filed. At the trial, counsel for the opposing side attempted to show that she was under the influence of intoxicating liquor at the time of the accident. A state trooper was introduced who described her physical appearance at the time from which it might be deduced that she was under the influence of intoxicants. In addition, the state trooper was permitted to testify over objection of appellant that she had refused to submit to a blood test after she was taken to a hospital. The question presented here is whether the court erred in admitting testimony concerning her refusal.

KRS 189.520 prohibits the operation of a vehicle on a highway by a person under the influence of intoxicating liquors or narcotic drugs. (KRS 189.990 fixes the penalty.) It also provides for tests of a defendant's blood and fixes standards and suggests presumptions which might arise from various percentages of alcohol found in the bloodstream.

Section (6) of this section reads: 'No person may be compelled to submit to any test specified in subsection (4) of this section, but his refusal to submit to such test may be commented upon by the prosecution in the trial against any person charged with operating any vehicle while under the influence of alcohol.' (Acts 1958, Chap. 126, effective 6--19--58.) The foregoing subsection was a departure from what had long been the law in this State. See Kentucky Statutes, Section 1645, and Criminal Code of Practice, Section 223.

KRS 421.225, re-complied from KRS 455.090, 1962 Acts, Chapter 234, Section 62, which became effective January 1, 1963, reads in part:

'(1) In any criminal or penal prosecution the defendant, on his own request, shall be allowed to testify in his own behalf, but his failure to do so shall not be commented upon or create any presumption against him.'

The foregoing subsection which refuses to permit anyone to comment upon a person's failure to testify has given force to that portion of Section 11 of the Constitution which simply states 'He cannot be compelled to give evidence against himself,' and supports that section of the fifth amendment of the Constitution of the United States which deals with self-incrimination.

We have extended the immunity rule to civil as well as criminal cases. In Kindt v. Murphy, Judge, 312 Ky. 395, 227 S.W.2d 895, this rule was quoted with approval from Jones on Evidence:

'Accordingly, it was early declared, and has since been universally held, that the privilege against self-incrimination may be asserted as of right in any ordinary civil case. Further, that to bring a person within the exemption it is not necessary that his examination as a witness should be had in the course of a penal or criminal prosecution or that such should have been commenced and be actually pending. It is sufficient if there is a law creating the offense under which the witness may be prosecuted. Wigmore, Sec. 2252, points out that this constitutional sanction is a recognition of a principle and not a new creation; that the clauses, 'the accused' and 'in criminal cases,' protect equally a mere witness in a civil case when the fact asked for is a criminal one, and that the privilege extends to all manner of proceedings in which testimony is to be taken.'

That principle was re-affirmed in Akers v. Fuller, 312 Ky. 502, 228 S.W.2d 29.

It was noted above that § 11 of the state and Amendment 5 of the federal constitution provide that no one can be compelled to give evidence against himself, and, in order that the amendment not be denied its effectiveness, legislative action and judicial fiat have imposed the additional safeguard that no one should be permitted to comment on such a person's failure to testify. It was pointed out in a footnote to Griffin v. State of California, 380 U.S. 609, at page 611, 85 S.Ct. 1229, 14 L.Ed.2d...

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5 cases
  • Opinion of the Justices to the Senate
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 12 May 1992
    ...470, 276 A.2d 452 (1971) (Federal); State v. Munroe, 22 Conn.Sup. 321, 171 A.2d 419 (1961) (State and Federal); 3 Hovious v. Riley, 403 S.W.2d 17 (Ky.Ct.App.1966) (State and Federal; impermissible to comment on refusal); State v. Andrews, 297 Minn. 260, 212 N.W.2d 863 (1973), cert. denied, ......
  • State v. Cormier, 84-509
    • United States
    • Supreme Court of New Hampshire
    • 16 August 1985
    ...Gay v. City of Orlando, 202 So.2d 896 (Fla.App.1967), cert. denied, 390 U.S. 956, 88 S.Ct. 1052, 19 L.Ed.2d 1149 (1968); Hovious v. Riley, 403 S.W.2d 17 (Ky.1966); State v. Adams, 162 W.Va. 150, 247 S.E.2d 475 We therefore hold that the guarantee against compelled self-incrimination provide......
  • Craig v. Com., Dept. of Public Safety
    • United States
    • United States State Supreme Court (Kentucky)
    • 24 September 1971
    ...of the blood test is inadmissible in this jurisdiction not only in a criminal proceeding but a civil one as well. See Hovious v. Riley, Ky., 403 S.W.2d 17 (1966). The evidence which the blood test is designed to procure is inadmissible in evidence because it is obtained in violation of sect......
  • Washburn v. Com.
    • United States
    • United States State Supreme Court (Kentucky)
    • 4 October 1968
    ...the fact that Schmerber rejected these arguments as relates to the federal constitution, whereas our court impliedly held in Hovious v. Riley, Ky., 403 S.W.2d 17, that taking a blood test without consent would violate the privilege against self-incrimination guaranteed by Section 11 of the ......
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