People v. Conterno

BISHOP, J.

I concur, both in the judgment and in the opinion which supports it, for it satisfactorily establishes these propositions:

(1) If it was error to permit inquiry about defendant’s refusal to take an intoximeter test, from the incomplete and sketchy record of oral proceedings before us we cannot say either that the error was not invited by the defendant or that it was prejudicial.
(2) It is not error to prove that a defendant, arrested, refused to permit the taking of an intoximeter test, for (a) such refusal, if not satisfactorily explained, may be taken by the jury as a circumstance to be considered, as it weighs the other evidence in the case; (b) the constitutional question involved, is not based upon the federal, but upon the state Constitution; and (c) our constitutional prohibition against compelling a person to be a witness against himself, prevents “testimonial compulsion,” but is not a constitutional right to refuse to have evidence taken as to one’s breath, blood, fingerprints, condition of eyes, and like bodily characteristics.