State v. Cruz

446 P.2d 307, 21 Utah 2d 406, 1968 Utah LEXIS 668

• Court: Utah Supreme Court
• Decided: October 23, 1968
• Docket: 11075
• Status: Published

Opinions

CALLISTER, Justice:

Defendant, John Cruz, appeals from his conviction of automobile homicide.¹ His claimed error is that the trial court erroneously allowed into evidence the results of a blood test administered shortly after the accident. He claims that the sample of his blood was taken against his will² and contrary to the provisions of 41-6^44.-10, U.C.A.1953 (Supp.1967).

Cruz was the driver of an automobile involved in a collision with another car. An occupant of the latter was fatally injured. • Cruz sustained injuries and was taken to a hospital for treatment and examination. While awaiting X-rays, he was asked by the investigating officers to submit to a blood test to determine the alcoholic content thereof. He refused and the officers consulted, via telephone, with an assistant county attorney. They were advised that, if necessary, the blood test could be taken by force in view of a recent United States Supreme Court decision.³ In the meantime, they had conversed over the telephone with Cruz’s attorney who informed them that he was advising his client to refuse to submit to the test. Although no physical force was exerted, it is conceded that the blood sample was extracted contrary to the permission or will of Cruz.

Section 41-6-44.10 (referred to above) provides as follows:

(a) Any person operating a motor vehicle in this state shall be deemed to have given his consent to a chemical test of his breath, blood or urine for the purpose of determining the alcoholic content of his blood, provided that such test is administered at the direction of a peace officer having reasonable grounds to believe such person to have been driving in an intoxicated condition. The arresting officer shall determine within reason which of the aforesaid tests shall be administered. If such person has been placed under arrest and has thereafter been requested to submit to any one of the above chemical tests and refuses to submit to such chemical test, the test shall not be given and the arresting officer shall advise the person of his rights under this section.⁴ * * *

[Emphasis added.]

It is the State’s contention that the driver of an automobile, because of the implied consent, must submit to a test prior to arrest, but not after. This would result in the anomalous situation of an arrested person being afforded more rights than one not under arrest.⁵ The legislature could not have intended such a result.

In other jurisdictions having similar statutes it has been held that a person, prior to arrest, cannot be compelled to submit to a blood or other test to determine the alcoholic content within his body. In Otte v. State ⁶ the court held that for the implied consent of a person to be effective, the person must have been arrested or taken into custody before the test is given.⁷

In Schutt v. Macduff ⁸ the court found the implied consent statute of New York unconstitutional because there was no provision limiting the implied consent to instances where there had been a lawful arrest. The statute was subsequently amended, confining the implied consent to cases in which there had been an arrest; the phrase “If such person refuses” was substituted with “If such person having been arrested * * * refuses.” The amended New York statute is similar to the one in Utah.

From a review of the cases and the language of Section 41-6-44.10, it becomes apparent that the legislature deliberately selected the phrasing “the arresting officer” and “If such person has been placed under arrest” with the intention that the implied consent to a chemical test arises only upon arrest and that only an arrested person is compelled to elect whether he will submit to a chemical test or lose his license. Consequently, a person prior to arrest has not given his implied consent to a chemical test and, therefore, his actual consent must be given.

In the instant action, appellant did not give his actual consent to the blood test and his forced submission thereto was not in compliance with the express terms of Section 41-6-44.10. The trial court erred in admitting the results of this test.

The judgment of the trial court is reversed and the case is remanded for a new trial in accordance with this opinion.

CROCKETT, C. J., and TUCKETT and, ELLETT, JJ., concur.

1 . 76-30-7.4, U.C.A.1953 (Supp.1967).

2 . Contrary to the 4th and 14th Amendments to the United States Constitution.

3 . Evidently referring to Schmerbcr v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), which is not in point inasmuch as the statute involved differs from Utah’s and the person involved was under arrest at the time.

4 . The statute provides that if the refusal were unreasonable, the persons’ driver’s license may be revoked for one year.

5 . Such interpretation might render the statute constitutionally invalid as being unjustly discriminatory and a denial of equal protection of the law.

6 . 172 Neb. 110, 108 N.W.2d 737, 741 (1961).

7 . Also see State v. Ball, 123 Vt. 26, 179 A.2d 466 (1962).

8 . 205 Misc. 43, 127 N.Y.S.2d 116 (1954).