Reset A A Font size: Print

Court of Appeal, First District, Division 3, California.

Jonathan Todd BYERS, Plaintiff and Respondent, v. The JUSTICE COURT FOR the UKIAH JUDICIAL DISTRICT, etc., Defendant and Respondent; PEOPLE of the State of California, Real Party in Interest and Appellant.

Civ. 24557.

Decided: September 23, 1968

Rawles, Nelson, Golden, Poulos & Hinkle, Ukiah, for plaintiff and respondent. Thomas C. Lynch, Atty. Gen. of California, Robert R. Granucci, Louise H. Renne, Deputy Attys. Gen., San Francisco, for real party in interest and appellant.

The People appeal from a judgment of the superior court granting a writ of prohibition restraining the Justice's Court for the Ukiah Judicial District from proceeding further against the respondent Jonathan Todd Byers on count two of a criminal complaint filed in the Justice's Court against Byers. Count two of the complaint charged that Byers violated Vehicle Code, section 20002(a),1 one of the ‘hit and run’ sections of the code. Count one of the complaint accused Byers of failing to pass to the left at a safe distance while overtaking another vehicle. (§ 21750.)

The superior court granted the writ of prohibition on the ground that section 20002 (a) could not be applied against Byers under the circumstances of this case without infringing his privilege against self-incrimination granted by the Fifth Amendment to the Constitution of the United States. We have concluded, however, that enforcement of sections 20002(a) and 21750 do not infringe Byers' privilege against self-incrimination under the facts of this case, because the evidence of his compelled compliance with section 20002(a), if such evidence exists, is inadmissible to prove that he was the driver of the vehicle involved in the accident. Accordingly, we reverse the judgment granting the writ.

Section 20002(a) reads as follows: ‘The driver of any vehicle involved in an accident resulting in damage to any property including vehicles shall immediately stop the vehicle at the scene of the accident and shall then and there either: (1) Locate and notify the owner or person in charge of such property of the name and address of the driver and owner of the vehicle involved, or; (2) Leave in a conspicuous place on the vehicle or other property damaged a written notice giving the name and address of the driver and of the owner of the vehicle involved and a statement of the circumstances thereof and shall without unnecessary delay notify the police department of the city wherein the collision occurred or, if the collision occurred in unincorporated territory, the local headquarters of the Department of the California Highway Patrol. Any person failing to comply with all the requirements of this section is guilty of a misdemeanor and upon conviction thereof shall be punished by imprisonment in the county jail for not to exceed six months or by a fine of not to exceed five hundred dollars ($500) or both.’

Section 21750 reads: ‘The driver of a vehicle overtaking another vehicle proceeding in the same direction shall pass to the left at a safe distance without interfering with the safe operation of the overtaken vehicle, subject to the limitations and exceptions hereinafter stated.’

It was stipulated in the superior court that the alleged violation of each of the foregoing sections of the code arose out of the same automobile accident.

The question we must decide is whether Byers' privilege against self-incrimination is infringed where he is charged with failure to stop after an accident, and give his name and address as driver of the vehicle involved (section 20002(a)) and is also charged with unsafe passing (section 21750), since compliance with section 20002 (a) would involve an admission that he was the driver of the vehicle that passed unsafely.

The various sections of the Vehicle Code that require a driver of an automobile involved in an accident to stop at the scene, and to give his name and address and file reports (§§ 20001–20009) are part of the statutory plan for the orderly use of the public highways. They serve to insure that persons injured are given necessary aid and care (People v. Scofield, 203 Cal. 703, 708, 265 P. 914), and in like manner to protect property owners against financial loss (People v. Stansberry, 242 Cal.App.2d 199, 203, 51 Cal.Rptr. 403; Miglierini v. Havemann, 240 Cal.App.2d 570, 573, 49 Cal.Rptr. 795). Obviously, compliance with these statutes may aid police authorities in gathering evidence of criminal responsibility, if any exists, for any accident a driver may report.

The requirement that the driver of a vehicle involved in an accident stop at the scene and give his name and address and render aid was first imposed by the Legislature in 1905. (See Stats.1905, ch. 612, p. 818; § 3(5); see also Penal Code, § 367c, repealed, Stats.1935, ch. 27, § 802, p. 247.) The statutory requirements were soon challenged as infringing the accused's privilege against self-incrimination. (Cal.Const. Art. I, § 13.) Thus, in People v. Diller, 24 Cal.App. 799, 142 p. 797, the defendant was charged with violation of Penal Code, section 367c, that is, failure to stop, give his name and render aid after collision with another vehicle. The defendant in that case was not charged with any other offense. The court concluded that the statute did not violate the California Constitution because no other crime was charged. The court viewed the statute as a simple police regulation, and quoted with approval the language of the court in Ex parte Kneedler, 243 Mo. 632, 639, 147 S.W. 983, 984, 40 L.R.A.,N.S., 622 where the Missouri court said of a similar statute: ‘The statute is a simple police regulation. It does not make the accident a crime. If a crime is involved, it arises from some other statute. It does not attempt in terms to authorize the admission of the information as evidence in a criminal proceeding. The mere fact that the driver discloses his identity is no evidence of guilt, but rather of innocence.’

In Diller also, the court noted with approval the reasoning of the New York court in People v. Rosenheimer, 209 N.Y. 115, 102 N.E. 530, 46 L.R.A.,N.S., 977 to the effect that use of the public highways is a privilege, not a right, and that it was therefore competent for the Legislature to prescribe conditions upon which the privilege might be exercised. This view, however, insofar as it rests upon the surrender of a constitutional right in return for the exercise of a privilege, is not now favored. (See Garrity v. State of New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562; Bagley v. Washington Township Hospital Dist., 65 Cal.2d 499, 504, fn. 2, 55 Cal.Rptr. 401, 421 P.2d 409, and cases cited.)

People v. Diller, supra, 24 Cal.App. 799, 142 P. 797, was followed in People v. Fodera, 33 Cal.App. 8, 164 P. 22. Both cases, however, involved only the privilege against self-incrimination extended by the California Constitution because, at the time those cases were decided, the Fifth Amendment to the United States Constitution was not deemed applicable to the states. (Twining v. State of New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97; Adamson v. People of State of California, 332 U.S. 46, 67 S.Ct. 1672, 91 L.Ed. 1903.) In Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653, however, the Supreme Court overruled its prior decisions in Twining and Adamson and declared the Fifth Amendment applicable to the states. Moreover, the court concluded that federal standards rather than state concepts concerning the scope and effect of Fifth Amendment guarantees must govern. We are required, therefore, to examine the contentions of the parties now before us in the light of federal standards governing application of the Fifth Amendment privilege.

It is settled that the privilege against self-incrimination applies to compelled testimonial communications and disclosures of the accused, but not to real or physical evidence obtained from him. (People v. Ellis, 65 Cal.2d 529, 533, 55 Cal.Rptr. 385, 421 P.2d 393, and authorities cited.) Thus, compulsory blood alcohol tests (Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908), line-up and voice identification (United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; People v. Ellis, supra, 65 Cal.2d 529, 55 Cal.Rptr. 385, 421 P.2d 393), and handwriting exemplars (Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178; People v. Graves, 64 Cal.2d 208, 49 Cal.Rptr. 386, 411 P.2d 114) taken from the accused, have been held not to violate the privilege.

It is clear that, under established federal standards, the privilege extends not only to information which would in itself support a conviction, but also to information which would furnish a link in the chain of evidence needed to convict. (Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 95 L.Ed. 1118; Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110.) Here, in the prosecution of the respondent Byers for failure to pass at a safe distance (§ 21750) it is difficult to imagine a more damaging link in the chain of prosecution evidence than that which establishes that he was the driver of the passing vehicle. To compel him to comply with section 20002(a) and thus to admit a fact essential to his conviction of a violation of section 21750 is to compel him to give a testimonial declaration that falls directly within the scope of the constitutional privilege.

Despite the fact that the information required by section 20002(a) comes within the scope of the Fifth Amendment privilege, we hold that the privilege is inapplicable when, as here, the accused can suffer no real or appreciable danger because of the compelled disclosure. When the driver of a vehicle involved in an accident resulting in damage to property stops at the scene of the accident and gives his name and address to the owner or person in charge of the damaged property, he complies with the law and is in danger of no criminal penalty for failure to comply with section 20002(a). But if such driver has also committed some other criminal offease arising out of the same course of conduct, as for example, failing to pass safely (§ 21750) as is charged in this case, or driving while drunk (§§ 23101, 23102), or driving while under the influence of narcotics (§ 23105) his compelled admission that he was the driver of the vehicle at the time and place in question places him in immediate danger of criminal prosecution. His Fifth Amendment privilege is thus violated, and for this very reason his admissions and statements made in compliance with section 20002(a) should not be used against him in a prosecution for a criminal offense arising out of the same course of conduct.

We find precedent for this view. In Murphy v. Waterfront Commission of New York Harbor, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 certain witnesses refused on Fifth Amendment grounds to answer questions before a government agency. The Supreme Court held that answers could be compelled despite the privilege because ‘* * * the Federal Government must be prohibited from making any such use [in a criminal prosecution] of compelled testimony and its fruits.’ In Adams v. State of Maryland, 347 U.S. 179, 74 S.Ct. 442, 98 L.Ed. 608 the Supreme Court reviewed a statute prohibiting the use in criminal prosecutions of testimony given before Congress or congressional committees. In Adams the petitioner had made no claim of privilege at the time his testimony was given. Nevertheless the court declared: (p. 181, 74 S.Ct. p. 445) ‘But no language of the Act requires such a claim in order for a witness to feel secure that his testimony will not be used to convict him of crime. Indeed, a witness does not need any statute to protect him from the use of self-incriminating testimony he is compelled to give over his objection. The Fifth Amendment takes care of that * * *.’ (Emphasis ours.) (See also J. H. Mansfield, The Albertson Cases: Conflict Between the Privilege Against Self-Incrimination and the Government's Need for Information, 1966 Sup.Ct.Rev. 103, 141.)

Respondent Byers cites and relies upon Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889; Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 and Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923. Two of these cases held in effect that federal statutes requiring gamblers to register, pay an occupational tax, and also to pay an excise tax upon the gross amount of wagers accepted violated the accused's Fifth Amendment privilege against self-incrimination. Haynes involved failure to register a firearm under the National Firearms Act, and held that that act, imposing registration and tax requirements on dealers and possessors of such firearms, similarly violated the accused's privilege against self-incrimination. But those cases are readily distinguishable from the case we here consider. As the Supreme Court noted, an obvious purpose of the federal statutory scheme was to coerce evidence from persons engaged in illegal activities for use in their prosecution. In short, the requirements of the federal statutes created a real and appreciable danger that, if the evidence demanded was supplied, prosecution would result. No such purpose underlies section 20002(a).

In Marchetti, Grosso and Haynes, supra, the court also declined to uphold the government's suggestion that the court permit continued enforcement of the statutes but shield the accused by restricting use of the information thus obtained. The court's reason for this aspect of its holdings was the manifest intention of Congress that such information be provided to law enforcement agencies. Said the court: ‘We can not know how Congress would assess the competing demands of the federal treasury and of state gambling prohibitions; we are, however, entirely certain that the Constitution has entrusted to Congress, and not to this Court, the task of striking an appropriate balance among such values. We therefore must decide that it would be improper for the Court to impose restrictions of the kind urged by the United States.’ (Marchetti v. United States, supra, 88 S.Ct. at pp. 708–709.) The considerations which impelled the court to reach this conclusion are totally absent from our case.

We see urgent and compelling reasons for enforcement of the ‘hit and run’ statutes, of which section 20002(a) is but a part. These reasons must prevail in the absence of clear and positive constitutional prohibition, which we do not find here. The safe and orderly use of modern highways makes imperative some measure of control over the careless and often wilfully reckless driver who may quickly bring death, personal injury and property destruction to others lawfully using the highways. The ‘hit and run’ statutes provide a measure of such control, albeit a small one. Their protection should not be denied to those who obey the law and conduct themselves in accord with established rules governing our complex society.

The judgment granting the writ of prohibition is reversed.


1.  All section references hereafter are to the Vehicle Code, unless otherwise noted.

SALSMAN, Associate Justice.

DRAPER, P. J., and HAROLD C. BROWN, J., concur.

Copied to clipboard