State v. Blaney
| Decision Date | 11 December 1981 |
| Docket Number | No. 15156,15156 |
| Citation | 168 W.Va. 462,284 S.E.2d 920 |
| Parties | STATE of West Virginia v. Roscoe Wayne BLANEY. |
| Court | West Virginia Supreme Court |
Syllabus by the Court
1. "In the trial of a criminal case, the State must prove, at least by a preponderance of the evidence, that a person under custodial interrogation has waived the right to remain silent and the right to have counsel present." Syl. pt. 2, State v. Rissler, W.Va., 270 S.E.2d 778 (1980).
2. "A verdict of guilty in a criminal case will not be reversed by this Court because of error committed by the trial court, unless the error is prejudicial to the accused." Syl. pt. 5, State v. Davis, 153 W.Va. 742, 172 S.E.2d 569 (1970).
Edwin C. Runner, Kingwood, for appellant.
Chauncey H. Browning, Jr., Atty. Gen. and William F. Carroll, Deputy Atty. Gen., Charleston, for appellee.
This is an appeal by Roscoe Blaney from his conviction of driving under the influence of alcohol in violation of W.Va.Code, 17C-5-2(a) [1976]. Following his jury trial in the Circuit Court of Preston County the appellant was sentenced to twenty-four hours in jail and his driver's license was suspended for the statutorily mandated six months.
The principal issue on this appeal is whether the blood alcohol test administered to appellant on the day of his arrest was properly admitted into evidence against him at trial. First, the appellant asserts that the blood test was inadmissible because he was not advised of his Miranda rights and informed of the provisions of the West Virginia Implied Consent Law, W.Va.Code, 17C-5A-1 et seq. [1972]. The appellant also argues that the trial court erred in admitting the test results into evidence when the State failed to show that the state police chemist had followed the approved procedures for admission of such evidence.
We find appellant's first argument to be without merit. The record indicates that before the blood test was administered the appellant signed a consent form. That consent, which was admitted into evidence and read to the jury during the trial, shows that appellant was advised of his right to counsel before making any statement or before giving his consent for the blood alcohol test and was advised that he was not required to make any statement, submit to any chemical test, or incriminate himself in any manner. The form also indicates that appellant waived those rights by signing the consent form.
We find the appellant's reliance on Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) to be misplaced. Miranda principles come into play only when there is a privilege against self-incrimination guaranteed by the Fifth Amendment to the U. S. Constitution. This privilege applies in the case where there is custodial interrogation of an accused, see, State v. Rissler, W.Va., 270 S.E.2d 778 (1980), but we have never found it applicable where the evidence obtained from the accused is not of a testimonial or communicative nature. See, Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) where the contention that forced withdrawal of blood violated the Fifth Amendment was rejected.
In this case the appellant was not forced to submit to the blood test, he requested it. And there are no allegations that appellant made any statement to the police officers inculpatory or otherwise. Thus we do not have a situation where the admissibility of the blood test depends upon "Miranda rights". Even if we were to find that Miranda was applicable in this situation, the evidence shows that the State carried its burden of proving a waiver of those rights. That standard of proof was enunciated in Syllabus Point 2 of State v. Rissler, supra :
"In the trial of a criminal case, the State must prove, at least by a preponderance of the evidence, that a person under custodial interrogation has waived the right to remain silent and the right to have counsel present."
Here we have more evidence than is needed to meet the Rissler standard which does not require an explicit waiver but can be satisfied by inferences drawn from the words and actions of the person being interrogated. 270 S.E.2d at 781. Having no allegations or evidence before us that the consent form was forged, that the appellant was illiterate and did not know what he was signing, or that the consent was involuntarily given, we find no error on this issue.
The appellant also contends that he should have been informed of the provisions of the Implied Consent Law. W.Va.Code, 17C-5A-1 [1972] states in part:
The statute clearly provides that the arresting officers are required to inform the arrested individual of the consequences of his refusal to submit to a test only where there has been such a refusal. In this case the evidence shows that when the officer asked the appellant to submit to the breathalyzer test, he did not refuse. Instead, he requested that he be...
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