State v. McCarthy, 37986

Decision Date19 August 1960
Docket NumberNo. 37986,37986
Citation104 N.W.2d 673,259 Minn. 24
Parties, 87 A.L.R.2d 360 STATE of Minnesota, Respondent, v. John Ernest McCARTHY, Appellant.
CourtMinnesota Supreme Court

Syllabus by the Court

1. Under M.S.A. § 169.121, subd. 2, which authorizes admission of evidence as to alcoholic content of defendant's blood determined by urinalysis or other tests, such tests must have been voluntary on part of defendant.

2--3. Under Minn.Const. art. 1, § 7, which provides that 'No person shall be * * * compelled in any criminal case to be a witness against himself, * * *'; and under M.S.A. § 611.11, which provides that in criminal proceedings defendant's 'failure to testify shall not create any presumption against him, nor shall it be alluded to by the prosecuting attorney * * *,' Held trial court erred in refusing to grant motion for mistrial after receiving inadmissible evidence that defendant, accused of driving while under influence of alcoholic beverage, had been requested to submit to urinalysis and that no such test had been made, since under § 169.121, subd. 2, such tests are Voluntary, and since implication from such evidence was that defendant had refused to take test.

4. Where medical expert based opinion as to defendant's intoxication upon certain tests given defendant at time of examination and recited such tests in detail and did not include therein responses or statements made by defendant to questions of expert, Held court did not err in receiving such opinion even though copy of defendant's statements had not been furnished defendant under § 611.033.

5. Reception of opinion evidence on ultimate issues rests largely in discretion of trial court. Where there was adequate foundation therefor, it was not error to receive testimony of medical expert that extent of defendant's intoxication was such that at time he was not able to consistently apply himself to the satisfactory performance of task in which he was engaged.

6. Under § 631.48, which relates to sentencing of defendants in criminal cases, it has been held by this court (State v. Morehart, 149 Minn. 432, 183 N.W. 960) that court imposing sentence may not require defendant to pay jury fees. Section 610.38, which likewise relates to sentencing of defendants in criminal cases and hence is in pari materia with § 631.48, should be construed to harmonize with the latter. Accordingly, sentence imposed upon defendant which as condition for probation required payment of jury fees was improper under either of such sections.

William T. Johnson, Stillwater, for appellant.

Walter F. Mondale, Atty. Gen., Henry H. Feikema, Sp. Asst. Atty. Gen., for respondent.


Appeal from a judgment entered upon a jury's verdict, convicting defendant of driving an automobile while under the influence of an alcoholic beverage in violation of M.S.A. § 169.121, subd. 1.

Defendant was arrested by a state highway officer in Washington County on May 18, 1959, shortly after midnight because of the speed at which he was driving, and the manner in which he drove over the centerline of the highway. After his arrest, because the arresting officer smelled intoxicants upon him, defendant was taken to the sheriff's office at Stillwater, where he was questioned by the arresting officer and also examined by Dr. Henry Van Meier, medical officer for Washington County, to determine whether he was intoxicated. At that time, he refused to submit to a urinalysis to show alcoholic content of his blood.

At the trial, during examination of the arresting officer, the following took place:

'Q. (By Mr. John F. Thoreen, county attorney): Was there a urine analysis test made of the defendant?

'A. No, there was not.

'Q. Was there a request made of the defendant to have such a test made?

'A. Yes.

'Mr. Johnson (counsel for defendant): Just a moment. I'm going to object to that question on the ground and on the point of moving for a mistrial because he knows the defendant does not have to testify against himself. That question is uncalled for and entirely improper and should never have been made.

'The Court: Well, the objection will be sustained, and the jury will be instructed to disregard the question and the answer that he made.

'Mr. Johnson: The defendant at this time will move for a mistrial.

'The Court: Well, that will be denied.'

In his testimony Dr. Van Meier was asked if he had an opinion as to whether defendant was intoxicated immediately after his arrest. Before answering and upon cross-examination by defendant's counsel, he testified that prior to trial his recollection as to defendant's condition at the time of his arrest had been refreshed by reference to notes which he had taken during his examination of defendant. Counsel for defendant thereupon objected to the foundation for his opinion on the ground that it would be in violation of § 611.033, which provides:

'No Statement, confession, or admission in writing shall be received in evidence in any criminal proceeding against any defendant unless at the time of the taking thereof such defendant shall have been furnished with a copy thereof and which statement, confession, or admission shall have endorsed thereon or attached thereto the receipt of the accused which shall state that a copy thereof has been received by him.' (Italics supplied.)

At that time the court sustained this objection, but subsequently the following proceedings with reference to this witness occurred:

By Mr. Thoreen:

'Q. * * * do you have an opinion, Doctor, and did you have an opinion at the time that you examined the defendant on May 18, 1959, as to whether or not he was under the influence of an alcoholic beverage?

'A. At the conclusion of my examination, I have an opinion.

'Q. What is you opinion?

'A. That he was under the influence of alcohol.

'Q. To what extent, Doctor, relating to his ability to drive an automobile?

'A. To the extent that it is my opinion that he, by virtue of the alcohol which he had consumed, was unable to consistently apply himself to the satisfactory performance of the task in which he was engaged.

'Mr. Johnson: If the Court please, I'll move that that answer be stricken as purely within the purview or the province of the jury to determine. He can give an opinion as to the extent of his intoxication, but not as to his ability to drive a car. 'That's up to the jury to determine.

'The Court: Well, I'm going to let the answer stand. The objection will be overruled.'

By Mr. Johnson:

'Q. Doctor, in rendering your opinion now that the defendant was under the influence or intoxicating liquor at the time that you examined him * * * it was also based on the conversations that you had with the defendant at that time, is that not correct?

'A. Mr. Johnson, I had no conversation with the defendant. Every question I asked him was a part of the examination.

'Q. Let me put it this way, Doctor: Besides the physical tests * * * did you give him other tests such as question-and-answer tests upon which you rely in making this opinion?

'A. Yes, sir.

'Q. You did rely upon these other parts of the examination which consisted of questions and answers, is that correct?

'A. Questions and answers and observations.

'Mr. Johnson: We move the doctor's testimony be stricken on the grounds that there is not a proper foundation for it, and also the Court has sustained the objection to striking part of it.

'The Court: That motion will be denied.'

Subsequent to the verdict, the court imposed sentence upon defendant as follows:

'The Court: Well, you, John Ernest McCarthy, having been convicted by a jury trial of the crime of driving while under the influence of an alcoholic beverage, as charged in the complaint before this Court, and therefore standing convicted of that crime as punishment therefor it is the sentence of the law and the judgment of this Court that you shall be committed to the County Jail of Washington County for a term of fifty days; provided, however, that this sentence will be suspended and you will be placed on probation to and under the Sheriff of Washington County for a period of six months, upon the condition that you shall remain law-abiding and of good behavior, And upon the further condition that within a period of thirty days you shall reimburse Washington County for its expenditures for the twelve jurors who have served on this case for two days, amounting to $196.80, and reimburse Washington County for the bailiffs' services rendered during the trial of this case, amounting to $48.00, and that you shall reimburse the Muncipal Court for the Court costs that were taxed in the amount of $31.75; and it is further ordered that if within thirty days you shall make these reimbursements, your sentence to the County Jail for fifty days will be indefinitely suspended.' (Italics supplied.)

On appeal defendant contends that the court erred (1) in denying his motion for mistrial on the ground that the arresting officer had testified that defendant had been requested to submit to a urinalysis, and that no such test had been made; (2) in overruling objection to Dr. Van Meier's opinion as to defendant's intoxication on the ground that the foundation upon which it was based was inadmissible; and (3) in permitting Dr. Van Meier to express the opinion that defendant was so intoxicated as to be unable to properly drive an automobile. Defendant also contends that the conditions imposed for suspension of sentence were in violation of his constitutional rights and in excess of the court's authority under § 631.48.

1. Under § 169.121, subd. 2, 1 which authorizes admission of evidence as

to alcoholic content of a defendant's blood as determined by urinalysis or other tests made within two hours of his arrest for driving while under the influence of an alcoholic beverage, it is clear that any such tests made must have been Voluntary on the part of defendant. By implication it is obvious from § 169.121 that such evidence...

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