Summary
In Piqua v. Hinger, 15 Ohio St.2d 110, 238 N.E.2d 766, defendant was arrested and subsequently charged with operating a motor vehicle while under the influence of intoxicating liquor.
Summary of this case from State v. StricklandOpinion
No. 68-110
Decided July 3, 1968.
Criminal procedure — Evidence — Operating motor vehicle while intoxicated — Physical tests — Motion pictures of such tests — Admissibility — Self-incrimination — Failure to advise of constitutional rights.
1. Physical tests, whereby a person accused of operating a motor vehicle while under the influence of intoxicating liquor is required to write his name and address, to pick up coins placed on the floor, to close his eyes and touch his hand to his nose, and to submit to a Breathalyzer test, and motion picture films made thereof, are real or physical evidence and not such communication or testimony of the accused as is protected by the constitutional privilege against self-incrimination.
2. Testimony regarding such tests, and the films thereof, are not subject to exclusion by reason of the failure to advise the accused of his constitutional rights as required by Miranda v. Arizona, 384 U.S. 346, and are admissible in evidence irrespective of whether such advice is given. ( Schmerber v. California, 384 U.S. 757.)
CERTIFIED by the Court of Appeals for Miami County.
Defendant was arrested February 1, 1967, and subsequently charged with operating a motor vehicle while under the influence of intoxicating liquor, a misdemeanor. He was taken to a police station where he was questioned, asked to write his name and address, asked to pick up coins placed on the floor, asked to close his eyes and touch his hand to his nose, and asked to take a Breathalyzer test. He willingly complied with these requests and participated in this series of physical tests. Thereafter, he was advised of his constitutional rights. Unknown to him at the time, motion picture films were made of him while the physical tests were being conducted.
At his trial before a jury in Piqua Municipal Court, these films were admitted into evidence and exhibited to the jury, over the objection of counsel for defendant that they were obtained in violation of defendant's constitutional rights under Miranda v. Arizona, 384 U.S. 436. The jury returned a verdict of guilty and a judgment of conviction was entered thereon.
Upon appeal, the Court of Appeals for Miami County reversed the judgment of conviction on the ground that evidence of the physical tests performed, and the films thereof, should have been suppressed on the authority of Miranda, supra. The court found that its judgment was in conflict with the judgment of the Court of Appeals for Franklin County in Columbus v. Hayes, 9 Ohio App.2d 38, and certified the record to this court for review and final determination.
Mr. R.K. Wilson, director of law, for appellant.
Messrs. Faust, Harrelson Thornburgh and Mr. William H. Thornburgh, for appellee.
The question raised in this case is whether the ruling in Miranda is applicable in misdemeanor cases.
We have examined the record in this case and find that Schmerber v. California, 384 U.S. 757, is applicable and dispositive of the issue of admissibility of the questioned evidence.
At the outset, it should be noted that no material objection was made to the questions that defendant was asked prior to being advised of his constitutional rights. The record is clear that the questions asked during the filming of the physical tests were solely for the purpose of getting defendant to speak and participate in the tests, and not for the substance of his answers. The statements of defendant which were reported at the trial in the testimony of the police officers, two of whom were personally acquainted with the defendant, were voluntary and unsolicited, and clearly not the product of custodial interrogation in the Miranda sense. See State v. Perry, 14 Ohio St.2d 256. Thus, the only question presented on the record is whether evidence of the physical tests conducted, and the film thereof, obtained prior to the time defendant was advised of his rights, is constitutionally admissible.
In Schmerber v. California, supra, decided in the same term, but after Miranda, the United States Supreme Court held that admission into evidence of the results of a blood-alcohol test made on a blood sample withdrawn from a defendant over his objection, and his refusal to submit to such test, on advice of counsel, did not violate his constitutional rights. After considering its decision in Miranda, the court, in Schmerber, said, at pages 764 and 765:
"* * * both federal and state courts have usually held that it [the privilege against self-incrimination] offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture. The distinction which has emerged, often expressed in different ways, is that the privilege is a bar against compelling `communications' or `testimony,' but that compulsion which makes a suspect or accused the source of `real or physical evidence' does not violate it.
"* * *
"* * * Since the blood test evidence, although an incriminating product of compulsion, was neither petitioner's testimony nor evidence relating to some communicative act or writing by the petitioner, it was not inadmissible on privilege grounds." (Emphasis added.)
The court, in Schmerber, upheld the blood-alcohol test although it was claimed that the admission of such evidence was a denial of due process and was the product of an unlawful search and seizure.
The evidence introduced in the trial of the instant case, in respect to the physical tests made and filmed, did not constitute matter communicated by the accused from his knowledge of the offense. On the contrary, it was real or physical evidence of the kind designated in Schmerber as unprotected by the Constitution. Such evidence is constitutionally admissible, even if compelled, and irrespective of whether the warnings required by Miranda are given. Accordingly, we do not reach the question of the applicability of Miranda to misdemeanor cases, and express no opinion thereon.
For the reasons stated, the judgment of the Court of Appeals is reversed, and the judgment of conviction entered by the Municipal Court is affirmed.
Judgment reversed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, SCHNEIDER and BROWN, JJ., concur.