People v. Sudduth, Cr. 10399

CourtUnited States State Supreme Court (California)
Citation55 Cal.Rptr. 393,65 Cal.2d 543,421 P.2d 401
Decision Date23 December 1966
Docket NumberCr. 10399
Parties, 421 P.2d 401 The PEOPLE, Plaintiff and Respondent, v. Louis Eugene SUDDUTH, Defendant and Appellant. In Bank

Morris Lavine, Norman T. Ollestad and Richard E. Erwin, Los Angeles, for defendant and appellant.

Roger Arnebergh, City Atty., Philip E. Grey, Asst. City Atty., and Michael T. Sauer, Deputy City Atty., for plaintiff and respondent.

TRAYNOR, Chief Justice.

A municipal court jury found defendant guilty of the misdemeanor of driving while under the influence of intoxicating liquor (Veh.Code, § 23102). Judgment was entered on the verdict, and defendant appealed, contending that his privilege against self-incrimination was violated by the admission of evidence of, and by the comment on, his refusal to take a breathalyzer test to determine the percentage of alcohol in his blood. The appellate department of the superior court affirmed the judgment. The Court of Appeal transferred the case on its own motion because of the constitutional question involved (Cal.Rules of Court, rule 62(a)) and affirmed the judgment. We granted a hearing because substantially the same constitutional question was before us in People v. Ellis, Crim. 10346, Cal., 55 Cal.Rptr. 385, 421 P.2d 393.

Officer Wilson of the Los Angeles Police Department testified that in response to a radio call reporting a driver under the influence of intoxicating liquor he and a fellow officer stopped defendant's car, which answered the radioed description and was observed making an unusual turning maneuver. Defendant was very unsteady when he got out of his car and approached the officers, and he produced his driver's license only after considerable fumbling in his wallet. His breath smelled strongly of alcohol.

Officer Wilson informed defendant of his rights to counsel and to remain silent and that anything he said could be used against him in a criminal proceeding. The officer then tried to explain and demonstrate a series of tests, known collectively as the Field Sobriety Examination, he proposed to administer to defendant. The examination consists of physical tests, such as walking a straight line, and a series of questions. While standing with the officers defendant was swaying to and fro and kept up a running line of one-sided conversation with Officer Wilson's partner. Defendant refused to take any of the physical tests and refused to answer any question except to respond with exculpatory statements to the inquiry as to how much he had drunk. Defendant was then taken to the police station where the equipment necessary to administer a breathalyzer test was assembled and its operation explained to him. He refused to take the test.

The evidence of defendant's refusals to take tests was commented on in the prosecutor's argument, and the jury was instructed on the significance of such evidence.

The reasoning in People v. Ellis, Crim. 10346, decided today, Cal., 55 Cal.Rptr. 385, 421 P.2d 393, is fully applicable to the question whether evidence of and comment on defendant's refusal to submit to a breathalyzer test is constitutionally admissible. Suspects have no constitutional right to refuse a test designed to produce physical evidence in the form of a breath sample (cf. pp. 386--387 of 55 Cal.Rptr., 394--395 of 421 P.2d; People v. Zavala (1966) 239 Cal.App.2d 732, 738--739, 49 Cal.Rptr. 129; People v. Dawson (1960) 184 Cal.App.2d Supp. 881, 883, 7 Cal.Rptr. 384) whether or not counsel is present (People v. Gilbert (1965) 63 Cal.2d 690, 709, 47 Cal.Rptr. 909, 408 P.2d 365).

We note that the physical and psychological disturbance of the individual involved in obtaining a breath sample is apt to be significantly less than that involved in extracting a blood sample, an evidence-gathering technique recently approved in Schmerber v. State of California (1966) 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908, and that the blood alcohol test and the breath test for alcoholic absorption are alternate means for determining the percentage of alcohol in the blood. 1 The value of such objective scientific data of intoxication to supplement the fallible observations by humans of behavior seemingly symptomatic of intoxication cannot be disputed. (People v. Duroncelay (1957) 48 Cal.2d 766, 772, 312 P.2d 690.) In a day when excessive loss of life and property is caused by inebriated drivers, an imperative need exists for a fair, efficient, and accurate system of detection, enforcement and, hence, prevention. (See Breithaupt v. Abram (1957) 352 U.S. 432, 439, 77 S.Ct. 408, 1 L.Ed.2d 448.)

As in Ellis (People v. Ellis, Crim. 10346, p. 389 of 55 Cal.Rptr., p. 397 of 421 P.2d), defendant's reliance on Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, must be rejected. The sole rationale for the rule against comment on a failure to testify is that such a rule is a necessary protection for the exercise of the underlying privilege of remaining silent (id. at p. 614, 85 S.Ct. 1229) A wrongful refusal to cooperate with law enforcement officers does not qualify for such protection. A refusal that might operate to suppress evidence of intoxication, which disappears rapidly with the passage of time (In re Newbern (1959) 175 Cal.App.2d 862, 866, 1 Cal.Rptr. 80, 79 A.L.R.2d 901), should not be encouraged as a device to escape prosecution.

The disparate results found in other jurisdictions may be ascribed to the presence of an underlying constitutional or statutory right to refuse to produce the physical evidence sought. 2 States that recognize a right to refuse to take such tests exclude evidence of a refusal. 3 States that recognize no right to refuse allow testimony and comment on the refusal. 4

It is contended that the instruction 5 given by the court on defendant's refusal to submit to a sobriety test erroneously authorized the jury to consider defendant's silence in response to questions at the time of his arrest, when such silence could not be considered evidence of guilt because it was an exercise of his constitutional right. 6 We do not believe, however, that the jury would understand the instruction to refer to defendant's refusal to answer questions as distinguished from his refusal to participate in a test. The instruction specifically refers to refusal to take 'a breathalyzer test or other sobriety test after he or she has been (made) aware of the nature of the test and its effect' and the prosecutor did not comment on defendant's failure to answer questions, but only on his refusal to take tests.

Defendant contends that the trial court erred in sustaining an objection to his counsel's argument to the jury on his refusal to take the sobriety test. 7 Counsel has the right to argue reasons alternative...

To continue reading

Request your trial
120 cases
  • People v. Perry, Cr. 5517
    • United States
    • California Court of Appeals
    • March 26, 1969
    ...the defendant to tests or a physical examination. (239 Cal.App.2d at pp. 738--739, 49 Cal.Rptr. 129. See also People v. Sudduth (1966) 65 Cal.2d 543, 546, 55 Cal.Rptr. 393, 421 P.2d 401; and People v. Ellis (1966) 65 Cal.2d 529, 533, 55 Cal.Rptr. 385, 421 P.2d 393.) Since there is no consti......
  • State v. Cormier, 84-509
    • United States
    • Supreme Court of New Hampshire
    • August 16, 1985
    ...v. Ellis, 65 Cal.2d 529, 421 P.2d 393, 55 Cal.Rptr. 385 (1966) (refusal to provide voice sample is non-testimonial); People v. Sudduth, 65 Cal.2d 543, 421 P.2d 401, 55 Cal.Rptr. 393 (1966) (refusal to furnish breath sample for breathalyzer constitutionally admissible), cert. denied, 389 U.S......
  • People v. Adams, Cr. 15259
    • United States
    • California Court of Appeals
    • June 28, 1976
    ...concentration have long been recognized by decisional law as scientifically valid in this state and elsewhere. (People v. Sudduth, 65 Cal.2d 543, 546, 55 Cal.Rptr. 393, 421 P.2d 401; People v. Conterno, 170 Cal.App.2d Supp. 817, 823--825, 339 P.2d 968, and cases cited therein.) In general t......
  • Wyatt v. State, 2138
    • United States
    • Court of Special Appeals of Maryland
    • February 27, 2003
    ...the constitutional prohibition against self incrimination prior to the Supreme Court's decision in Neville. See People v. Sudduth, 65 Cal.2d 543, 55 Cal.Rptr. 393, 421 P.2d 401, 403 (1966); State v. Meints, 189 Neb. 264, 202 N.W.2d 202, 203-04 (1972); Westerville v. Cunningham, 15 Ohio St.2......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT