State v. Severson, 262
| Decision Date | 17 February 1956 |
| Docket Number | No. 262,262 |
| Citation | 75 N.W.2d 316 |
| Parties | STATE of North Dakota, Plaintiff and Respondent, v. Samuel F. SEVERSON, Defendant and Appellant. Cir. |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
1. Section 39-0801, 1953 Supp. to NDRC 1943, which, in prosecution for operating a vehicle while under the influence of intoxicating liquor, authorizes the introduction in evidence of the results of chemical tests of the bodily fluids of a defendant, and which expressly provides that 'no defendant shall be required to submit to any chemical test without his consent' implies that where defendant has not testified, testimony of his refusal to submit to such a test may not be received in evidence against him.
2. The statutes relating to procedure in county courts of increased jurisdiction require that the record of the proceedings and testimony upon a trial of an action in such court be made by a court reporter or stenographer appointed by the judge of the court.
Lyle Huseby, Fargo, for appellant.
Paul Benson, Atty. Gen., Bismarck, Lee F. Brooks, State's Atty., and C. J. Serkland, Asst. State's Atty., Fargo, for respondent.
Defendant was convicted in the County Court of Increased Jurisdiction of Cass County of the crime of driving a motor vehicle while under the influence of intoxicating liquor. He has appealed from the judgment of conviction. Upon this appeal there are two specifications of error: (1) That the trial court erred in admitting in evidence, over objection, testimony that the defendant immediately after his arrest had refused to take a blood test for the purpose of ascertaining the percentage of alcoholic content in his blood; and (2), That the trial court erred in directing that the proceedings and testimony on the trial be recorded by means of a mechanical or magnetic recording machine instead of having the record made by a court reporter or stenographer.
In support of his contentions upon the first specification the defendant relies upon Section 39-0801, 1953 Supp. NDRC 1943. This section provides for admission in evidence, in criminal cases where the charge against the defendant is 'driving a motor vehicle while under the influence of intoxicating liquor', testimony as to the results of a chemical test showing the concentration of alcohol in the defendant's blood at the time of his arrest. It provides that certain presumptions, based upon different percentages of alcoholic content, shall follow from the testimony. It also provides: 'No defendant shall be required to submit to any chemical test without his consent.'
Defendant argues that this statute in granting to a defendant protection against an involuntary test implies both that the results of an involuntary test, and that where defendant does not testify, the refusal to take a test may not be received in evidence against him. We have no doubt whatever but that this statute clearly implies that evidence of the results of such a test may not be received in evidence unless the defendant consented to the test. We think the legislative purpose in granting a defendant protection against an involuntary test was to prevent the giving of evidence as to the contents of his bodily fluids, unless he had consented to their examination. If the statute were not so construed the protection granted would be but an empty privilege to violation by aggressive and overly zealous officers, who might be tempted to secure bodily fluids for examination by trickery or force.
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 willynilly, 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. We do not think the legislature intended this result in a situation where the defendant has not testified. This conclusion is in harmony with the spirit of the criminal law as administered in this state. Here we have expressly provided by statute that Section 29-2111, NDRC 1943....
To continue reading
Request your trial
-
Opinion of the Justices to the Senate
...of self-incrimination and the Federal privilege. State v. Asherman, 193 Conn. 695, 478 A.2d 227 (1984).4 See, e.g., State v. Severson, 75 N.W.2d 316 (N.D.1956) (statutory privilege to refuse, therefore refusal inadmissible); Barron v. Covey, 271 Wis. 10, 72 N.W.2d 387 (1955) (statute permit......
-
State v. Bock, 8535
... ... Werling, 234 Iowa 1109, 13 N.W.2d 318; Green Lake County v. Domes, 247 Wis. 90, 18 N.W.2d 348, 159 A.L.R. 204; State v. Severson, N.D.1956, 75 N.W.2d 316; State v. Gatton, 60 Ohio App. 192, 20 N.E.2d 265; Ash v. State, 1940, 139 Tex.Cr.R. 420, 141 S.W.2d 341; State v. Green, ... ...
-
Campbell v. Superior Court In and For Maricopa County
...District of Columbia, 157 A.2d 294 (Munic.Ct.App.D.C., 1960); State v. Ingram, 67 N.J.Super. 21, 169 A.2d 860 (1961); State v. Severson, 75 N.W.2d 316 (S.Ct.N.D., 1956); Duckworth v. State, 309 P.2d 1103 (Crim.Ct.App.Okl., 1957). Contra: State v. Bock, 80 Idaho 296, 328 P.2d 1065 (1958). Se......
-
Dudley v. State
...State v. Oswald, 241 N.W.2d 566, 569 (S.D.1976). See also City of Brookings v. Jensen, 243 N.W.2d 71 (S.D.1976). In State v. Severson, 75 N.W.2d 316 (N.D.1956), the Supreme Court of North Dakota "Whether the statute implies that evidence of a refusal to take a test may be not received in ev......