State v. Durrant
| Citation | 55 Del. 510,188 A.2d 526 |
| Parties | , 55 Del. 510 STATE of Delaware v. James Edward DURRANT. |
| Decision Date | 18 February 1963 |
| Court | United States State Supreme Court of Delaware |
A Certification from the Superior Court.
Charles L. Parusewski, Deputy Atty. Gen., for the State.
James J. Walsh, Wilmington, for defendant.
Defendant, James Edward Durrant, was taken into custody by a trooper of the Delaware State Police for driving a motor vehicle upon a public highway of this State while under the influence of intoxicating liquor in violation of Section 4111(a) of Title 21 of the Delaware Code. He was requested to submit to certain physical reaction tests, but refused. The defendant was taken to the State Police Barracks where the arresting trooper requested him to take an intoximeter test. He likewise refused to submit to this examination.
At trial the arresting Trooper and a Civil Defense Officer were, over objection, permitted to testify that the defendant refused to submit to the above-mentioned tests. These witnesses were also permitted to give their opinions as to the defendant's fitness and capability to operate a motor vehicle on the highway, testifying that in their opinion the defendant was under the influence of intoxicating liquor--based on their observation of him.
Following this testimony the Court instructed the jury to disregard any references to the refusals of the defendant to submit to the so-called sobriety tests. The jury was further advised that no inferences or conclusions were to be drawn from the testimony relating to the defendant's refusal to take the tests.
The jury returned a verdict of guilty and defendant entered a motion for a judgment of acquittal, or, in the alternative, for a new trial.
The following questions have been certified to this Court by the Superior Court of New Castle County:
1. In the trial of a person accused of violating 21 Del.C., Sec. 4111(a), should the Trial Court receive in evidence testimony by the investigating police officers that the accused refused to take sobriety tests, including the so-called intoximeter tests?
2. In a prosecution for operating a motor vehicle under the influence of intoxicating liquor, is evidence of defendant's refusal to take a physical reaction test and an intoximeter test at a time when he is not under arrest admissible under the due process clause of the State Constitution?
3. In the trial of a person accused of violating 21 Del.C., Sec. 4111(a), should the Trial Court admit in evidence opinion testimony of the investigating police officer, as an expert, as to whether the accused was under the influence of intoxicating liquor, and therefore, unfit to operate a motor vehicle, after the officer has testified as to facts observed by him on which he bases the opinion?
We have accepted certification.
Article 1, Section 7 of the Delaware Constitution, Del.C.Ann., recites in part:
'In all criminal prosecutions, the accused * * * shall not be compelled to give evidence against himself * * *.
The problem presented under the first two questions concerns the import to be given to the phrase, 'the accused * * * shall not be compelled to give evidence against himself,' as the same appears under the constitutional provision, supra.
The questions certified for our consideration have not heretofore been accorded a determination by this Court. We recognize that other jurisdictions, when faced with similar questions, have been far from uniform in thought in respect to the proper interpretation to be given to this privilege in whatever terms expressed.
The thought on one side, as indicated by the cases, is that the privilege against compulsory self-incrimination pertains only to testimonial compulsions, or their equivalent.
The contrary thought is to the effect that the privilege extends beyond testimonial compulsions or their equivalent, and encompasses compulsory demonstrations by acts or conduct which tend to incriminate and which are said to be as obnoxious to the immunity granted as by words from the lips of the accused.
Necessity does not require an analysis of the many decisions. It should suffice to say that the background of the law in the different jurisdictions provides in large part the basis for the divergence of thought that exists.
While not cited by either party on briefs, a guide for the determination of Questions (1) and (2) is set forth in the case of State v. Smith, 8 Terry 334, 91 A.2d 188 (Super.Ct.Del., 1952). In that case the Court stated:
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State v. Fish
...72 Cal.Rptr. 224 (1968); People v. Municipal Court (Gonzales), 137 Cal.App.3d 114, 186 Cal.Rptr. 716 (1982); State v. Durrant, 5 Storey 510, 55 Del. 510, 188 A.2d 526 (1963); State v. Bock, 80 Idaho 296, 328 P.2d 1065 (1958); People v. Miller, 75 Ill.App.3d 775, 31 Ill.Dec. 581, 394 N.E.2d ......
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Hill v. State
...to chemical analysis tests does not violate the privilege against self-incrimination. Campbell v. Superior Court, supra; State v. Durrant, Del., 188 A.2d 526 (1963); State v. Bock, 80 Idaho 296, 328 P.2d 1065 (1958); State v. Smith, 230 S.C. 164, 94 S.E.2d 886 (1956). We note that Judge Cat......
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State v. Jackson
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Olson v. State
....... (u)nless some attempt is made to secure a communication--written, oral or otherwise--upon which reliance is to be placed as involving his consciousness of the facts and the operations of his mind in expressing it, the demand made upon him is not a testimonial one. . . .' . 55 State v. Durrant, 188 ......