State v. Curtis

• Decision Date: 30 March 1984
• Docket Number: No. 13859,13859
• Citation: 106 Idaho 483,680 P.2d 1383
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Gregory Ryan CURTIS, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 1383

680 P.2d 1383

106 Idaho 483

STATE of Idaho, Plaintiff-Respondent, v. Gregory Ryan CURTIS, Defendant-Appellant.

No. 13859.

Court of Appeals of Idaho.

March 30, 1984.

Frederick G. Loats, Coeur d'Alene, and John F. Croner, Boise, for defendant-appellant.

Jim Jones, Atty. Gen., by Lynn E. Thomas, Sol. Gen., and Timothy M. Walton, Deputy Atty. Gen., of Boise, for plaintiff-respondent.

BURNETT, Judge.

After drinking alcoholic beverages, Gregory Ryan Curtis drove an automobile upon a public highway. He collided head-on with another vehicle. The impact killed a woman passenger in the other car. Curtis now stands convicted of involuntary manslaughter. On appeal he contends that he was prosecuted under a defective statute and that the evidence of a blood alcohol test was improperly admitted at trial. We reject both contentions and affirm the judgment of conviction.

I

We turn first to Curtis' attack upon the manslaughter statute, I.C. § 18-4006. ¹ The statute, as it existed when this case arose, defined involuntary manslaughter to include the killing of another human being without malice, while operating a motor vehicle, "[i]n the commission of an unlawful act, not amounting to a felony" or "[i]n the commission of a lawful act which might produce death, in an unlawful manner." Each of these acts was further classified as to whether it was accompanied by gross negligence. If a proscribed act were committed "with gross negligence," it would be punishable as a felony under a companion statute, I.C. § 18-4007. If the act were committed "without gross negligence," it would be punishable only by the lesser penalties ascribed to an "indictable misdemeanor." State v. Long, 91 Idaho 436, 441, 423 P.2d 858, 863 (1967). Curtis' challenge to § 18-4006 is a narrow one. He argues that insofar as the statute proscribes conduct without gross negligence, it is of doubtful meaning. This contention is grounded upon decisions of our Supreme Court holding that the term "criminal negligence"--as used in another statute, I.C. § 18-114--means gross negligence. ² State v. Hintz, 61 Idaho 411, 102 P.2d 639 (1940); State v. McMahan, 57 Idaho 240, 65 P.2d 156 (1937). Curtis urges that these decisions leave no room for § 18-4006 to prohibit anything less than gross negligence, thus creating doubt as to what conduct is covered by those provisions of § 18-4006 which refer to acts "without gross negligence." This argument has both constitutional and statutory dimensions.

A

Curtis' constitutional attack upon § 18-4006 invokes the due process provisions of the fourteenth amendment to the United States Constitution and of art. I, § 13, in the Idaho Constitution. Due process requires a criminal statute to give fair warning of the conduct prohibited, so that affected persons may conform their conduct to the requirements of the law. United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989 (1954); State v. Lopez, 98 Idaho 581, 590, 570 P.2d 259, 268 (1977). However, a criminal defendant suffers no deprivation of due process unless the challenged statute is applied to his disadvantage. E.g., State v. Wendler, 83 Idaho 213, 360 P.2d 697 (1961) (constitutional challenge to "off-highway" application of negligent homicide statute not considered when defendant was convicted of the offense while on the highway). See also Sullivan v. Sullivan, 102 Idaho 737, 739 n. 5, 639 P.2d 435, 437 n. 5 (1981). There must be a connection between the challenged provisions of a statute and the litigation in question before we are required to consider the statute's constitutionality. Boode v. Allied Mutual Insurance Co., 458 P.2d 653 (Wyo.1969).

In this case, no such connection has been demonstrated. Curtis was not charged with, nor was he convicted of, conduct lacking gross negligence. Rather, the prosecutor's information charged Curtis with gross negligence, the jury that convicted him was instructed on gross negligence, and the verdict recited a finding of gross negligence. Curtis does not now contend that such a finding lacked support in the record. Indeed, we believe the finding was adequately supported by testimony that Curtis had been drinking and by evidence from which it could be inferred that Curtis' vehicle had crossed the centerline of the highway. Accordingly, we hold that Curtis has not shown that his right to due process was infringed by any vagueness ascribed to the provisions of § 18-4006, relating to conduct without gross negligence.

B

Curtis' underlying statutory claim--that the meaning of § 18-4006 is clouded by § 18-114--could be similarly rejected for lack of germaneness to this case. But we deem it important to explain that the contention also is defective on its merits. In State v. Long, supra, our Supreme Court examined § 18-4006 in light of the construction earlier placed upon the phrase "criminal negligence" in § 18-114 by Hintz and McMahan. The Court in Long noted that § 18-4006 subsequently had been amended, in 1965, to create a separate category of involuntary manslaughter involving the use of a motor vehicle. As to that type of manslaughter--and that type only--the Legislature established criminal responsibility for conduct "without gross negligence" and prescribed a level of punishment less severe than that authorized for felonies. The Court in Long declared that the Legislature thereby evinced an intent to change the law existing before 1965, upon which Hintz and McMahan had been based. The Court implicitly held that vehicular involuntary manslaughter under § 18-4006 was not subject to the restrictive interpretation of "criminal negligence" in § 18-114.

We find no reason to depart from Long. We agree with the Supreme Court that the Legislature was free in 1965 to create a separate, lesser category of crime for vehicular homicides lacking gross negligence. Many other states previously had enacted such laws; indeed, the courts of some jurisdictions specifically had interpreted phrases such as "criminal negligence" to allow imposition of criminal penalties for acts unaccompanied by gross negligence. See Annot., 161 A.L.R. 10 (1946). We hold that the conduct prohibited by § 18-4006 is not made doubtful by the interpretive gloss placed upon § 18-114. We sustain the validity of § 18-4006 as applied to this case. ³

II

We next consider whether the district court erred by admitting the results of a blood alcohol test. That test, conducted at a hospital, showed Curtis to have a blood alcohol content of .198%--more than twice the then-existing level of presumptive intoxication. See I.C. § 49-1102 (as amended, 1974 Idaho Sess.Laws ch. 27, § 141, p. 938). Curtis contends that he submitted to the test only because he was coerced. He mounts a two-pronged attack upon admission of the evidence, claiming that his constitutional rights were violated and that the Idaho "implied consent" statute was violated. We examine each argument in turn.

A

There is no general, constitutional right to refuse a blood alcohol test. State v. Turner, 94 Idaho 548, 494 P.2d 146 (1972). Such a test--which produces real, rather than testimonial or communicative, evidence--does not infringe upon any privilege against self-incrimination. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); State v. Bock, 80 Idaho 296, 328 P.2d 1065 (1958). Neither does a blood test, unless performed with inappropriate force, offend any basic values of fairness underlying the constitutional guaranty of due process. Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448 (1957). However, the administration of a blood alcohol test is a seizure of the person, and a search of his body for evidence, within the fourth amendment to the United States Constitution. Schmerber v. California, supra. The fourth amendment applies to the states through the fourteenth amendment. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). ⁴

The blood test in this case was administered without a search warrant. A warrantless search or seizure is unreasonable per se, and invokes the exclusionary rule under the fourth amendment, unless it falls within a recognized exception to the warrant requirement. In State v. Harwood, 94 Idaho 615, 495 P.2d 160 (1972), our Supreme Court identified such an exception for a search, with probable cause, made necessary by impending loss or destruction of the evidence. The United States Supreme Court in Schmerber, upholding administration of a blood test over a nonconsenting defendant's fourth amendment challenge, specifically noted that exigent circumstances may exist for blood alcohol tests. The constraints of time due to natural destruction of the evidence, as alcohol is eliminated from the human body, make a warrantless blood test reasonable and appropriate. State v. Turner, supra.

The Schmerber court further acknowledged the requirement enunciated in Harwood, that a warrantless search in exigent circumstances must be supported by probable cause. In Schmerber the defendant had been arrested for drunk driving. The Supreme Court held that facts establishing reasonable cause for the arrest also suggested the likely positive result of a blood test, and satisfied the requirement of probable cause for the search. In the present case, Curtis had not been arrested before the test was administered; but reasonable cause for such an arrest existed. When the police arrived at the scene of the fatal collision, an officer noted both full and empty beer cans in Curtis' car. When the officer talked to Curtis in an ambulance, he smelled a strong alcoholic odor on Curtis' breath. Such facts would suffice to establish reasonable cause to arrest for driving while intoxicated, and they furnish probable cause to conduct a blood alcohol test. State v. Cutler, 94 Idaho 295, 486 P.2d 1008 (1971). The fact that an arrest was not actually made before the test does not detract from the existence of probable cause. It is the existence of...