State v. Meints, 38486
| Citation | 189 Neb. 264,202 N.W.2d 202 |
| Decision Date | 17 November 1972 |
| Docket Number | No. 38486,38486 |
| Parties | STATE of Nebraska, Appellee, v. Lloyd R. MEINTS, Appellant. |
| Court | Supreme Court of Nebraska |
Syllabus by the Court
1. Where proof of a different crime tends to establish motive, criminal intent, or guilty knowledge, it is admissible.
2. The refusal of a defendant to submit to a legal chemical test for intoxication is admissible in evidence.
3. The prosecuting attorney may comment to the jury on the refusal of a defendant in a prosecution for driving while under the influence of intoxicating liquor to submit to the chemical test which is required by law.
John H. McArthur, Lincoln, for appellant.
Clarence A. H. Meyer, Atty. Gen., Mel Kammerlohr, Asst. Atty. Gen., Lincoln, for appellee.
Heard before WHITE, C.J., and SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON and CLINTON, JJ.
Defendant appeals a third offense drunk drive conviction. He predicates his appeal on the admission in evidence of his refusal to give a body fluid specimen, and on the fact that the deputy county attorney commented on that refusal in his closing argument to the jury. We affirm.
Defendant has not raised any question as to the sufficiency of the evidence. We observe, however, that it was ample to sustain the conviction without regard to the disputed testimony.
The offense occurred November 4, 1971, in Gage County, Nebraska. The defendant, who was involved in an accident, refused to give a chemical test for intoxication to comply with the Nebraska Implied Consent Law. In the trial, which took place an January 31 and February 1, 1972, the State was permitted to show that the defendant refused to give a body fluid specimen on seven different occasions.
Section 39--727.03, R.S.Supp., 1971, provides that any person who operates or has in his actual control a motor vehicle upon a public highway in this state shall be deemed to have given his consent to submit to a chemical test of his blood, urine, or breath for the purpose of determining the amount of alcoholic content in his body fluid. It further provides that any person who refuses to submit to a blood, breath, or urine test required pursuant to this section shall be guilty of a crime and upon conviction thereof shall be punished as provided in section 39--727, R.S.S.upp., 1971.
Defendant argues it was prejudicial error to permit the State to show he committed another crime in addition to the one for which he was on trial. It is not necessary to discuss the cases cited by the defendant. They are not in point herein. It is the exception to the rule which he urges that is pertinent.
Where proof of a different crime tends to establish motive, criminal intent, or guilty knowledge, it is admissible. See Henry v. State (1939), 136 Neb. 454, 286 N.W. 338. That is the nature of the evidence which defendant seeks to exclude. It is proper in a criminal case to show defendant's conduct, demeanor, statements, attitudes, and relation toward the crime. These are circumstances to be shown. Their weight is for the jury. These are admissible if the rules governing their admission are strictly observed. A refusal to submit to a sobriety test required by law is such a circumstance.
So far as we can determine, this is the first time that the admission of testimony as to the defendant's refusal to submit to a chemical test for intoxication in his trial for driving while under the influence of alcoholic liquor has been before this court. While there is a division among the various jurisdictions on the admissibility of the evidence of the refusal to submit to the test, we believe the better rule is the majority one which permits the admission of such evidence. Section 39--727.03, R.S.Supp., 1971, is very definite: 'Any person who operates * * * shall be deemed to have given his consent * * *.' Consent being required, the refusal to give the chemical test should be admissible in evidence against the defendant. We accordingly hold that the refusal of a defendant to submit to a legal chemical test for intoxication is admissible in evidence. See State v. Holt (1968), 261 Iowa 1089, 156 N.W.2d 884, a case which on its facts is very similar to the instant one; and an Annotation on the point in 87 A.L.R.2d 370.
In Schmerber v. California (1966), 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908, the United States Supreme Court held that a blood sample withdrawn from a defendant's body without his consent and over his objections did not violate his provilege against self-incrimination.
We now consider defendant's second contention, comment by the prosecutor on such evidence. It would seem that if it is constitutionally permissible to take a blood specimen over objection, and if evidence of the refusal to give a specimen is admissible, it should follow that it is permissible to comment to the jury on the refusal to take the test.
The following language from City of Westerville v. Cunningham (1968), 15 Ohio St.2d 121, 239 N.E.2d 40, is very pertinent herein: ...
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