People v. Conterno

• Decision Date: 30 April 1959
• Docket Number: Cr. A
• Court: California Superior Court
• Parties: 170 Cal.App.2d Supp. 817 PEOPLE of the State of California, Plaintiff and Respondent, v. Domenic CONTERNO, Defendant and Appellant. 3981. Appellate Department, Superior Court, Los Angeles County, California

Page 968

339 P.2d 968

170 Cal.App.2d Supp. 817

PEOPLE of the State of California, Plaintiff and Respondent, v. Domenic CONTERNO, Defendant and Appellant.

Cr. A. 3981.

Appellate Department, Superior Court, Los Angeles County, California.

April 30, 1959.

As Corrected June 15, 1959.

Morris Lavine, Los Angeles, for appellant.

Roger Arnebergh, City Atty., Philip E. Grey, Asst. City Atty., William E. Doran, Deputy City Atty., Los Angeles, for respondent.

DAVID, Judge.

The jury's verdict declared defendant Conterno guilty of violation of California Vehicle Code, sec. 502: 'It is unlawful for any person who is under the influence of intoxicating liquor to drive a vehicle upon any highway * * *'; and upon a second count of the complaint, found that he was guilty of operating a vehicle upon a public highway without having in his possession and displaying upon demand a valid license, etc., in contravention of Vehicle Code, sec. 274, subd. (b).

The judgment of the court was that the defendant on the first count should pay a fine in the sum of $250, suspended on condition that $125 of the fine be paid or that 25 days be served, and on condition that defendant should not drive without a valid license; with the usual alternative of imprisonment if the fine should not be paid; and upon and second count, that he should pay a fine in the sum of $10, payment suspended. The defendant appeals from this judgment.

Although the insufficiency of the evidence to support the judgment is urged, particularly in reference to the second count of the complaint, the appellant has not brought the evidence before us, either by settled statement or reporter's transcript. The sufficiency of the evidence to support the verdict and the judgment is therefore not in issue, and we must affirm the judgment in relation to the second count. We therefore turn our attention to the first count.

When arrested, the defendant was requested by the arresting officer to give a breath sample for the intoximeter test, and refused. The settled statement on appeal states: 'The defendant testified that he refused an intoximeter test on the ground that the giving of the test was a violation of his constitutional rights. The defendant objected on constitutional grounds to testifying to any facts regarding the giving of or refusal to take the intoximeter rest. The objection was overruled.'

Appellant claims in the statement on appeal that: 'The court erred in admitting evidence that the defendant stood on his constitutional rights in refusing to take a balloon test and in using the fact of refusal to incriminate himself as a basis for conviction.'

Upon this appeal, defendant Conterno asserts that the trial court also committed prejudicial error in its refusal to instruct the jury that:

'(No. 1) You are instructed that no inference of guilt attaches to the defendant by reason of his refusal to take any so-called sobriety tests.

'(No. 3) You are instructed that a person has a constitutional right to refuse to take any tests at the request of officers arresting him and no inference of wrongdoing may be had by you from such refusal, if one occurred.'

The court did instruct:

'(No. 4) You are instructed you may not speculate as to what might have been the result of a sobriety test, if one had been taken.'

'(No. 8) You are instructed that the defendant did not have to take any sobriety tests.'

No other instructions bearing upon the subject matter were offered or given.

Which constitutional rights he had in mind when he refused the test or made his objection at time of trial are not specified. We will assume that these are California Constitution, Art. I, secs. 13 and 19 as urged in the briefs. California Constitution, Art. I, sec. 13, provides in part: 'No person shall be * * * compelled, in any criminal case, to be a witness against himself; * * * but in any criminal case, whether the defendant testifies or not, his failure to explain or deny by his testimony any evidence or facts in the case against him may be commented upon by the court and by counsel, and may be considered by the court or the jury.'

Such right of comment upon, and consideration of, a defendant's failure to explain or deny evidence in the case against him does not violate the Fifth or Fourteenth Amendments. Adamson v. People of State of California, 1947, 332 U.S. 46, 67 S.Ct. 1672, 92 L.Ed. 1903, 171 A.L.R. 1223; affirming People v. Adamson, 1946, 27 Cal.2d 478, 165 P.2d 3.

California Constitution, Art. I, sec. 19, provides in part: 'The right of the people to be secure in their persons * * * against unreasonable seizures and searches, shall not be violated; * * *'.

We take judicial notice that the intoximeter or breach analysis test for alcoholic intoxication is frequently called by laymen 'a balloon test', due to the use of a small rubber balloon to collect the breath sample.

To determine the quantity of blood alcohol, samples of the bodily fluids such as blood, urine, saliva, or the human breath are analyzed. See People v. Kovacik, 1954, 205 Misc. 275, 128 N.Y.S.2d 492, 500 et seq. describing such tests. ¹

The scientific validity of such tests, when properly administered, is generally conceded. People v. Doroncelay, 1957, 48 Cal.2d 766, 772, 312 P.2d 690; cf. Lawrence v. City of Los Angeles, 1942, 53 Cal.App.2d 6, 8, 127 P.2d 931. Until the quantitative analysis is made and the results have been interpreted by an expert, it cannot be known whether the person from whom the breath or other sample was taken was or was not under the influence of intoxicating liquor, within the terms of Vehicle Code, sec. 502. 'Nor should it be ignored that a test of this kind may serve to exonerate, as well as to convict.' People v. Duroncelay, supra, 1957, 48 Cal.2d 766, 772, 312 P.2d 690, 694. Such testing may determine that an apparent impairment of a person's physical faculties is not due to alcohol, and that other medical aid is needed urgently; as in case of insulin shock, concussion of the brain from trauma, and the like. (Cf. State v. Shiren, 1951, 15 N.J.Super. 440, 83 A.2d 620, electro-encephalogram, to prove that 'blackout' was not due to intoxication.) Both for the protection of the citizen who needs medical attention and the protection of the police officer against claims of false arrest, physical examinations to determine that cause of a citizen's apparent lack of physical coordination and control are important. Cf. circumstances of Wood v. Cox, 1935, 10 Cal.App.2d 652, 52 P.2d 565. ²

The test itself does not declare guilt nor innocence, nor the fact of intoxication, which still is to be determined by the testimony of experts interpreting the test. People v. Tucker, 1948, 88 Cal.App.2d 333, 339, 198 P.2d 941; People on Complaint of Meehan v. Spears, 1952, 201 Misc. 666, 114 N.Y.S.2d 869, 870. The test and the evidence founded upon it may protect the innocent (Toms v. State, supra, 95 Okl.Cr. 60, 239 P.2d 812, 817), and the reports reflect occasions where it has done so. As in State v. Ayres, 1949, 70 Idaho 18, 211 P.2d 142; cf. Mason Busses, Inc. v. Dashiell, 1945, 73 Ga.App. 108, 35 S.E.2d 666, 670.

Where the test is given the results are to be weighed and considered with all other evidence by the jury (People v. Tucker, supra, 88 Cal.App.2d 333, 339, 198 P.2d 941), and even where a state has adopted certain alcoholic blood content figures as the basis for presumptions as to intoxication, such presumptions are not conclusive. Trimble v. City of New York, 1949, 275 App.Div. 169, 88 N.Y.S.2d 324.

I.

The trial court properly refused to give defendant's proposed instruction No. 3, which declared in part: 'You are instructed that a person has a constitutional right to refuse to take any tests at the request of officers arresting him * * *.'

A. There is no constitutional privilege under California Constitution, Art. I, sec. 13.

It has long been the law in this state that only testimonial compulsion is within the purview of the privilege against self-incrimination under California Constitution, Art. I, sec. 13. People v. Trujillo, 1948, 32 Cal.2d 105, 112-113, 194 P.2d 681, certiorari denied Woodmansee v. People of State of California, 335 U.S. 887, 69 S.Ct. 236, 93 L.Ed. 426; People v. Robarge, 1953, 41 Cal.2d 628, 632-633, 262 P.2d 14; People v. Chapman, 1957, 151 Cal.App.2d 59, 63, 311 P.2d 190. Handwriting exemplars: People v. Harper, 1953, 115 Cal.App.2d 776 779, 252 P.2d 950; People v. Smith, 1952, 113 Cal.App.2d 416, 419, 248 P.2d 444; but cf. People v. Wignall, 1932, 125 Cal.App. 465, 13 P.2d 995. Consult Wigmore, Evidence (3rd Ed. 1940) sec. 2250, 2251, 2265; note, 171 A.L.R. 1144.

Evidence produced as a result of a physical examination of a prisoner to determine his condition, made without his consent, does not violate constitutional provisions against self-incrimination. People v. One 1941 Mercury Sedan, 1946, 74 Cal.App.2d 199, 168 P.2d 443; Territory of Hawaii v. Chung Nung, 1912, 21 Haw. 214, 219; Skidmore v. State, 1939, 59 Nev. 320, 92 P.2d 979, 982; O'Brien v. State, 1890, 125 Ind. 38, 25 N.E. 137, 139, 9 L.R.A. 323.

Expert testimony, based upon the analysis of bodily fluids or breath made from samples taken without the consent of the defendant, is admissible in evidence. The constitutional privilege afforded by California Constitution, Art. I, sec. 13, supplemented by Penal Code, secs. 688, 1323 and 1323.5, is not violated. People v. Duroncelay, supra, 1957, 48 Cal.2d 766, 312 P.2d 690; People v. Haeussler, 1953, 41 Cal.2d 252, 260 P.2d 8, certiorari denied Haeussler v. People 347 U.S. 931, 74 S.Ct. 533, 98 L.Ed. 1082; People v. Tucker, 1948, 88 Cal.App.2d 333, 343-344, 198 P.2d 941; People v. Lewis, 1957, 152 Cal.App.2d 824, 830, 313 P.2d 972; cf. People v. One 1941 Mercury Sedan, supra, 1946, 74 Cal.App.2d 199, 202-214, 168 P.2d 443; accord, State v. Bock, supra, Idaho 1958, 328 P.2d 1065, 1067-1068, reviewing many authorities; Breithaupt v. Abram, 1957, ...