State v. Nutt
| Decision Date | 15 March 1946 |
| Parties | STATE v. NUTT. |
| Court | Ohio Court of Appeals |
Marcus Shoup, Pros. Atty., of Xenia, for plaintiff-appellee.
Merritt E. Schlafman, of Dayton, for defendant-appellant.
This is an appeal on questions of law from the Common Pleas Court of Greene County, Ohio, wherein the defendant was convicted on the charge of operating a motor vehicle while under the influence of intoxicating liquor.
Seven assignments of error are set forth by the defendant, but we will confine our attention only to those covered in the brief of the defendant, to wit:
1. The verdict is not sustained by the weight of the evidence; and
2. The Court erred in permitting witnesses to testify that defendant had been asked whether or not he was willing to submit to an urinalysis test and stating that he refused to do so, over the objections and exceptions of the defendant.
The record discloses that the chief of police of the village of Osborn, Ohio, and also a physician were permitted to testify over the objections of the defendant that the defendant refused to submit to a physical examination, and also that he refused to furnish a sample of his urine for the purpose of an analysis. The defendant contends that Article I. section 10 of the Ohio Constitution provides that no person shall be compelled to be a witness against himself, and that permitting the foregoing answers violated the constitutional rights of the defendant.
We have been able to find only one case in Ohio which is on all fours with the case at bar and which we think to be decisive of this question. The case referred to is State v. Gatton, 60 Ohio App. 192, 20 N.E.2d 265 266. Here the Court held that on a trial for diving a motor vehicle while intoxicate, evidence that the defendant, after being arrested and confined in jail, had been asked to submit to having either a blood test or an urinalysis made to determine the amount of alcohol in his system and had refused to have such test taken, was properly admitted over the objection that it required the defendant to testify against himself in violation of the State Constitution. The Court held further that his failure to testify may be considered by the Court and jury and may be the subject of comment by counsel. The Court said: ...
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