State v. Shilo
| Decision Date | 12 January 1967 |
| Docket Number | No. 10615,10615 |
| Citation | 225 A.2d 524,101 R.I. 533 |
| Parties | STATE v. Michael I. SHILO. Ex. |
| Court | Rhode Island Supreme Court |
In this criminal complaint the defendant is charged with the operation of a motor vehicle on a public highway 'while under the influence of intoxicating liquor to a degree which renders him incapable of safely operating same.' The cause was tried to a jury in the superior court in October 1963, and the defendant was found guilty as charged. His subsequent motion for a new trial was denied, and he now prosecutes a bill of exceptions to this court.
It appears that on April 30, 1963 defendant was operating an automobile along Pawtucket avenue in the city of East Providence and became involved in a collision with another motor vehicle. Upon the arrival of the police, he was taken to the East Providence police station, where he was subjected to an in-custody interrogation by police officers and examined for sobriety by Dr. Arthur M. Dell. Under police supervision the doctor directed defendant to perform certain acts designed to desclose the degree of his intoxication, alnd, after observing his performance of these acts, the doctor stated that he found defendant to be under the influence of liquor and unfit to drive a motor vehicle.
The defendant argues, first, that there was a violation of his constitutional right to invoke the privilege against self-incrimination and to have the assistance of counsel at the time of his in-custody interrogation on the night of April 30, 1963. He argues without contradiction that on that occasion he was not informed by the police that he could have the assistance of counsel or that he had the right to remain silent. He argues, further, that the privilege against self-incrimination bars compelling one to engage in conduct or acts designed to permit an examining physician to make observations thereof and to base an opinion as to the sobriety of the defendant on such observations. Not being informed as to his right to refuse to so conduct himself is, according to defendant, a further violation of his constitutional rights. In pressing these arguments he relies primarily on Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and State v. Mendes, R.I., 210 A.2d 50.
In the circumstances of the instant case it avails defendant nothing to raise this question, conceding that the interrogating police officers did not comply with the constitutional requirements set out in Mendes and Escobedo, supra, and even if the required performance of the demonstrative acts for the physician's observation are 'testimonial' or 'communicative' and within the bar of the fifth amendment. See Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908. This because it is settled in this state that Escobedo and Mendes will not be applied beyond the time fixed for such retroactive application in State v. Gannites, R.I., 221 A.2d 620.
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