State v. Oswald, 11659

• Decision Date: 29 April 1976
• Docket Number: No. 11659,11659
• Citation: 241 N.W.2d 566,90 S.D. 342
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Jerauld Ray OSWALD, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 566

241 N.W.2d 566

90 S.D. 342

STATE of South Dakota, Plaintiff and Respondent, v. Jerauld Ray OSWALD, Defendant and Appellant.

No. 11659.

Supreme Court of South Dakota.

April 29, 1976.

James R. Haar, Goetz, Hirsch, Haar & Blackburn, Tripp, for defendant and appellant.

William J. Janklow, Atty. Gen., Peter H. Lieberman, Asst. Atty. Gen., Pierre, for plaintiff and respondent.

WINANS, Justice.

Defendant Jerauld Ray Oswald was convicted in a jury trial of driving while under the influence of intoxicating liquor and has appealed to this Court, raising questions with regard to the trial court's refusal of two requested instructions and with regard to the admissibility of testimony concerning his exercise of a statutory right not to take a blood test. Because we find that a requested instruction was refused to the prejudice of Defendant and because we also find that the testimony in question was incorrectly allowed we reverse the lower court.

Appellant Oswald was arrested for driving while intoxicated on November 16, 1974, after he had drawn the attention of Police Chief Wagner to himself at Menno, South Dakota. Chief Wagner advised Oswald of his rights under our state's implied consent statute, apparently two different times that night and each time Oswald flatly refused to submit to a blood test. A trial was held on February 18, 1975, in circuit court at which Oswald did not testify. Over Appellant's objections two witnesses were permitted to state that Oswald had refused to take the blood test. Because of the testimony that had been allowed concerning Defendant's exercise of his statutory right not to take a blood test, and because Oswald did not testify, Defendant's counsel requested that the following instructions be given the jury:

'No. 9 Every Defendant in a criminal case has the absolute right not to testify. You must not drawn (sic) any inference of guilt against the Defendant because he did not testify. He is not required to prove himself innocent, or put in any evidence at all upon that subject. The fact that the Defendant has not testified in this case raises no presumption against him, and you must give no thought to the fact that the Defendant did not testify in his own behalf in this case, in arriving at your verdict.'

(This appears to be a combination of all of Instruction 1--17 and all but one sentence of Instruction 1--17 (alternate form) of the South Dakota Criminal Pattern Jury Instructions.)

'No. 12 You are further instructed that the laws of this State grant until (sic) the accused a statutory right to refuse to submit to a blood test.'

Both requested instructions were refused. The jury found Oswald guilty and he was sentenced to eighteen months in the state penitentiary.

Right to Exclude Evidence of Refusal to Take Blood Test

Appellant's counsel on appeal suggests that Oswald has a right under both the United States Constitution and the South Dakota Constitution to refuse to submit to a blood test and a right not to have testimony concerning such a refusal admitted at trial. He also contends that such rights are assured Defendant by our statute, SDCL 32--23--10.

Article Five of the Amendments to the United States Constitution provides in part that:

'No person . . . shall be compelled, in any criminal case, to be a witness against himself . . .'

Article VI, § 9 of the South Dakota Constitution states:

'No person shall be compelled in any criminal case to give evidence against himself or be twice put in jeopardy for the same offense.'

SDCL 32--23--10 is our implied consent law:

'Any person who operates any vehicle in this state shall be deemed to have given his consent to a chemical analysis of his blood, urine, breath or other bodily substance for the purpose of determining the amount of alcohol in his blood, as provided in § 32--23--7, provided that such test is administered at the direction of a law enforcement officer having lawfully arrested such person for a violation of § 32--23--1.

'Such person shall be requested by said officer to submit to such analysis and Shall be advised by said officer of his right to refuse to submit to such analysis and the provisions of §§ 32--23--11 and 32--23--12 in the event of such refusal with respect to the revocation of such person's driving license.'*

Because we feel that this matter is adequately disposed of on statutory grounds we find no need to reach the constitutional questions.

Quite recently in State v. Buckingham, 1976, S.D., 240 N.W.2d 84, Mr. Justice Wollman for this Court observed:

'Implicit in our implied consent statute, however, is the right to refuse to submit to a test and, a fortiori, the requirement that a choice be made between submitting to the test or suffering the consequences of such refusal. (citations omitted) Also implicit in the implied consent law is the assumption that the choice to be made is of considerable importance to the arrested driver. Although it may be true that to some drivers the loss of their license for a period of one year would be a penalty more severe than being convicted of the offense of driving while intoxicated, (citation omitted), there no doubt are some who would rather suffer the loss of their license for one year than to suffer the ignominy of a conviction for driving while intoxicated, together with the adverse economic consequences such a conviction entails. If the offense of driving while intoxicated is considered serious enough to warrant the constitutional guarantee of a jury trial, (citation omitted), then surely it is serious enough to require law enforcement officers to comply with the statutorily mandated procedural steps as a prerequisite to the admissibility of the results of a chemical test conducted pursuant to the implied consent law.'

In the case before us the Defendant was informed of his statutorily guaranteed right and, for whatever reason we do not know, he elected not to submit to the test. Certainly it is unfair to create by statute a right not to submit to a chemical test and to allow the accused to exercise that right and then in open court before a jury to permit testimony concerning that refusal which can ball too easily work in the minds of the jury members to the prejudice of the defendant.

Some twenty years ago the Supreme Court of our sister state to the north had before it a case similar to the one we now deal with. The reasoning of that court, though their statute may differ from ours, is appropriate here:

'Whether the statute implies that evidence of a refusal to take a test may be not received in evidence against a defendant is a question that is not without difficulty. We are of the opinion, however, that when the legislature granted an accused person a choice of whether he would submit to such a test, it intended that the choice should be absolutely free and not encumbered by a liability. If the fact that an accused person chooses not to take a test can be put in evidence and argued to the jury as evidence of guilt, then the statute places the defendant in a position where willy-nilly, he must risk providing evidence for the prosecution by submitting to a test or certainly provide it by refusing to take one, although his reason for refusal may have no relation to the question of guilt or innocence. * * * Thus the policy of our law appears to be that a defendant may claim a privilege granted by statute or the constitution, without being subjected to the liability that his exercise of the right may be used against him.' State v. Severson, 1956, N.D., 75 N.W.2d 316.

In an Oklahoma case a witness testified that he thought the defendant was drunk 'because he was red faced and he refused to take the test.' A police officer also testified that the defendant refused to take the (intoximeter) test. There the Oklahoma Court noted:

'* * * the defendant's refusal to take the test was used by the state in its case in chief for purely prejudicial purposes. The accused's refusal should have ended the inquiry on the subject. It ill behooves the courts to say you have a right to refuse to do something, which may prove either beneficial or detrimental to you, and yet, notwithstanding your right so to do, we will permit your refusal to be shown and enable the state to destroy your right and achieve indirectly by innuendo what it was prevented by law from accomplishing directly. We can conceive of no greater inconsistency.' Duckworth v. State, 1957, Okl.Cr., 309 P.2d 1103 at 1105.

In a New York case testimony was given at trial that the defendant refused permission to a physician to take a blood sample for the determination of alcoholic content. Mr. Justice Coon for the Appellate Division of that Supreme Court said, after setting out pertinent testimony:

'That this was damning evidence against the defendant, when practically the sole issue was his intoxication, cannot be denied. The question is whether it was competent for any purpose. We think not.

The Legislature has provided that evidence of the alcoholic content of the blood may be received in evidence. (citation omitted). It has also recognized a person's right to refuse the test. Vehicle and Traffic Law, § 71--a. * * * The courts of this State have long and consistently held that under our self-incrimination laws the receipt of evidence in a criminal trial of a defendant's complete silence or refusal to answer is reversible...