State v. Bock, 8535

• Decision Date: 30 July 1958
• Docket Number: No. 8535,8535
• Citation: 328 P.2d 1065,80 Idaho 296
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Vondell A. BOCK, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 1065

328 P.2d 1065

80 Idaho 296

STATE of Idaho, Plaintiff-Respondent, v. Vondell A. BOCK, Defendant-Appellant.

No. 8535.

Supreme Court of Idaho.

July 30, 1958.

Pat W. Arney, Coeur d'Alene, LeRoy C. Kinnie, Spokane, Wash., for appellant.

Graydon W. Smith, Atty. Gen., J. R. Smead, Asst. Atty. Gen., James W. Ingalls, Pros. Atty. Coeur d'Alene, for respondent.

TAYLOR, Justice.

September 18, 1955, at approximately 9:30 p. m., while driving north on state highway 41, in Kootenai county, defendant (appellant) lost control of his car and it left the highway, injuring appellant and a passenger, Mrs. Dellene D. Louden. Appellant and Mrs. Louden were taken to a hospital in Coeur d'Alene, where Mrs. Louden died the next day without regaining consciousness.

Appellant was belligerent, uncooperative, and refused aid, both at the scene of the accident and at the hospital. At the hospital appellant was asked by the laboratory technician, a police officer, and a physician, if he would submit to a blood alcohol test. This he refused. The officer delivered to appellant a citation, charging him with reckless driving and left him at the hospital. He was allowed to return to his home in Spokane. There he was taken to a hospital because of pain, and it was discovered by X-ray that he suffered three broken ribs and a punctured lung. Shortly thereafter, appellant was arrested, charged with the crime of involuntary manslaughter, and placed in the Lake City General Hospital in Coeur d'Alene, in Kootenai county, for a period of seven days.

Trial commenced December 5, 1956. Prior thereto appellant moved to suppress all evidence of his refusal to submit to a blood alcohol test, on the grounds, among others, that such evidence was incompetent and would violate his constitutional privilege against self-incrimination. This motion was denied. At the opening of the trial, before the introduction of evidence, the motion was renewed on the additional ground that the request having been made prior to arrest was unlawful; that defendant had the right to refuse; and that the request violated his constitutional right of due process. Upon the trial the hospital technician, police officer, and physician, over appellant's objection, were permitted to testify to his refusal to submit to the test. These rulings are assigned as error.

Section 49-1102, I.C., [1953, Ch. 273, § 54, p. 478] makes it unlawful to drive a vehicle while under the influence of intoxicating liquor, provides the punishment therefor, and sets forth the presumptions which shall arise from the various percentages of alcohol in the blood of the defendant, as shown by chemical analysis of his blood, urine, breath or other bodily substance.

In 1955 the present section 49-352 was enacted as follows:

'Any person who operates a motor vehicle or motorcycle in this state shall be deemed to have given his consent to a chemical test of his breath, blood, urine or saliva for the purpose of determining the alcoholic content of his blood, provided that such test is administered at the direction of a police officer having reasonable grounds to believe such person to have been driving in an intoxicated condition and in accordance with the rules and regulations established by the police force of which he is a member. If such person having been placed under arrest and having thereafter been requested to submit to such chemical test refuses to submit to such chemical test the test shall not be given but the commissioner shall revoke his license or permit to drive and any nonresident operating privilege; provided, however, the commissioner shall grant such person an opportunity to be heard but a license, permit or nonresident operating privilege may, upon the basis of a sworn report of the police officer that he had reasonable grounds to believe such arrested person to have been driving in an intoxicated condition and that said person had refused to submit to such test be temporarily suspended without notice pending the determination upon any such hearing. The provisions of section(s) 49-329 and 49-330 Idaho Code shall be applicable to revocations under this section.'

The respondent, State of Idaho, urges that § 49-352 is applicable only to actions brought under § 49-1102 involving the charge of driving while under the influence of intoxicating liquor, and that it is not applicable in a manslaughter case where intoxication of the driver is charged only as descriptive of the manner and means by which the crime was committed. We do not agree that the 1955 act is to be so narrowly applied. Nothing in its terms indicates such a limitation upon its application. Sections 49-329 and 49-330, referred to therein, providing authority and procedure for revocation and suspension of drivers' licenses and permits, would authorize action by the commissioner in a case where homicide is also involved.

The provisions of the 4th and 5th amendments to the Constitution of the United States affording protection against unreasonable searches and seizures and self-incrimination are not applicable to proceedings in the state courts. Twining v. State of New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97; Adamson v. People of State of California, 1947, 332 U.S. 46, 67 S.Ct. 1672, 91 L.Ed. 1903. However, we have the identical provisions in our state constitution, Art. 1, §§ 13 and 17.

The provisions of § 13 that 'No person shall * * * be compelled in any criminal case to be a witness against himself', and of § 17 'against unreasonable searches and seizures', are applicable only to testimonial compulsion and do not apply to 'real' evidence produced by a reasonable examination of the body of the accused, or a reasonable search and seizure of his person and effects. State v. Ayres, 70 Idaho 18, 211 P.2d 142; State v. Linebarger, 71 Idaho 255, 232 P.2d 669; State v. Cram, 1945, 176 Or. 577, 160 P.2d 283, 164 A.L.R. 952; People v. One 1941 Mercury Sedan, 1946, 74 Cal.App.2d 199, 168 P.2d 443, hearing denied; People v. Tucker, hearing denied, 1948, 88 Cal.App.2d 333, 198 P.2d 941; Block v. People, 125 Colo. 36, 240 P.2d 512; Kallnbach v. People, 1952, 125 Colo. 144, 242 P.2d 222; People v. Haeussler, 1953, 41 Cal.2d 252, 260 P.2d 8; People v. Caritativo, 46 Cal.2d 68, 292 P.2d 513; People v. Smith, 142 Cal.App.2d 287, 298 P.2d 540; Vigil v. People, 134 Colo. 126, 300 P.2d 545; Barnhart v. State, Okl.Cr., 302 P.2d 793; Alexander v. State, Okl.Cr., 305 P.2d 572; People v. Duroncelay, 48 Cal.2d 766, 312 P.2d 690; People v. McDaniel, Cal.App., 321 P.2d 497, hearing denied; State v. Werling, 234 Iowa 1109, 13 N.W.2d 318; Green Lake County v. Domes, 247 Wis. 90, 18 N.W.2d 348, 159 A.L.R. 204; State v. Severson, N.D.1956, 75 N.W.2d 316; State v. Gatton, 60 Ohio App. 192, 20 N.E.2d 265; Ash v. State, 1940, 139 Tex.Cr.R. 420, 141 S.W.2d 341; State v. Green, 227 S.C. 1, 86 S.E.2d 598; State v. Smith, 1956, 230 S.C. 164, 94 S.E.2d 886; Schutt v. Macduff, 1954, 205 Misc. 43, 127 N.Y.S.2d 116; Blackford v. United States, 9 Cir., 1957, 247 F.2d 745; Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021, 20 Ann.Cas. 1138; Breithaupt v. Abram, 1957, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448; People v. Woods, 1957, 139 Cal.App.2d 515, 293 P.2d 901, certiorari denied 352 U.S. 1006, 77 S.Ct. 566, 1 L.Ed.2d 550; VIII Wigmore on Evidence, 3rd Ed., §§ 2263, 2265; Annotations, 127 A.L.R. 1513; 159 A.L.R. 209; 164 A.L.R. 967; 18 A.L.R.2d 796; 25 A.L.R.2d 1407.

In Holt v. United States, supra, a murder case decided in 1910, Justice Holmes said:

'Another objection is based upon an extravagant extension of the 5th Amendment. A question arose as to whether a blouse belonged to the prisoner. A witness testified that the prisoner put it on and it fitted him. It is objected that he did this under the same duress that made his statements inadmissible, and that it should be excluded for the same reasons. But the prohibition of compelling a man in a criminal court to be a witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material.' 218 U.S. at page 252, 31 S.Ct. at page 6, 54 L.Ed. at page 1030.

In Rochin v. People of California, 1952, 342 U.S. 165, 72 S.Ct. 205, 210, 96 L.Ed. 183, 25 A.L.R.2d 1396, the police illegally entered the defendant's house and, seeing him place capsules in his mouth, tried to forcibly extract them therefrom. The capsules being swallowed in the struggle, the defendant was handcuffed and taken to the hospital where the capsules, found to contain morphine, were forcibly taken from his stomach. The court held the methods used were so 'close to the rack and screw' and so offensive to a 'sense of justice' as to be a violation of due process under the 14th amendment.

In 1957 the question was again before the Supreme Court in Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448. The defendant was convicted in a state court of manslaughter, resulting from driving a car while intoxicated. He did not appeal, but applied to the Supreme Court of New Mexico for a writ of habeas corpus, claiming that his conviction was procured by evidence from an involuntary blood test, and thus he was deprived of his liberty without the due process of law guaranteed by the 14th amendment. The Supreme Court of New Mexico denied the writ and the petitioner appealed to the United States Supreme Court. In affirming the state court, Justice Clark, speaking for the majority, said:

'Basically the distinction rests on the fact that there is nothing 'brutal' or 'offensive' in the taking of a sample of blood when done, as in this case, under the protective eye of a physician. To be sure, the driver here was unconscious when the blood was taken, but the absence of conscious consent, without more, does not necessarily render the taking a violation of a constitutional right; and certainly the test as administered...