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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Louis Eugene SUDDUTH, Defendant and Appellant.

Cr. 11706.

Decided: July 13, 1966

Morris Lavine, Norman T. Ollestad, Richard E. Erwin, Los Angeles, for appellant. Roger Arnebergh, City Atty., Philip E. Grey, Asst. City Atty., Michael T. Sauer, Deputy City Atty., for respondent.

Defendant appeals from a judgment, which followed the verdict of a jury finding him guilty of having violated Vehicle Code, section 23102, (Misdemeanor drunk driving).

The evidence relevant to the consideration of the points made on appeal is as follows:

Officer Wilson, the only witness whose testimony is contained in the record before us, stopped defendant's car after a radio call he had received and certain maneuvers defendant had executed gave him cause to believe that Sudduth was operating the vehicle under the influence of intoxicating liquor.   When defendant stepped from his car and approached the officer he was very unsteady on his feet.   Asked for his driver's license, he fumbled in his wallet for about thirty seconds, handed the officer a credit card and then took another minute finding the license.   A very strong odor of an alcoholic beverage was noticed on his breath.

The officer told defendant of his right to counsel, his right to remain silent and that anything he said could be used against him in a criminal proceeding.   He then started to explain and demonstrate certain tests he proposed to give defendant, known as the Field Sobriety Examination.   This examination consists of physical tests, such as walking a straight line and a series of questions to be answered by the subject.

The questions just mentioned which are merely paraphrased in the record, appear to be the following:  “Have you been injured or are you sick?”  “Are you being treated by a doctor or dentist?”  “Are you a diabetic?”  “Do you take insulin?”  “Do you have a physical defect?”  “Where are you?”  “what is the time?”  “How much have you had to drink?”  “With whom have you been drinking?”  “Where have you last had something to drink?”  “where [when?] did you last sleep?”  “How many hours of sleep have you had?”

Wilson had a hard time explaining the test to defendant, who kept up a “running line of conversation” with Wilson's partner, Officer Donaldson.

Defendant refused to take any of the physical tests and refused to answer any question except the inquiry as to how much he had drunk.   This he answered variously with “nothing” and “two beers.”

No objection to any of this evidence was made by defense counsel.

 After his arrest defendant was taken to the station where the officer assembled and explained to defendant the equipment necessary for a “breathalyzer” examination.   Over objection 1 , evidence was received that defendant had refused the test.   The officer testified that he “assumed” that defendant had a constitutional right to refuse all tests, including the breathalizer, but the only warnings given were those previously noted.2

The evidence so far summarized was to some extent commented on in the prosecutor's argument.

At the request of the People the jury was instructed on the significance of defendant's refusal to submit to tests.

Defendant proceeds on a broad constitutional front.   The admission of his refusals to take the various tests and to answer the questions addressed to him, the prosecutor's argument and the judge's instruction are alleged to violate the principles announced by our own Supreme Court in People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361 and by the United States Supreme court in Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1229, 14 L.Ed.2d 106;  Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 and Rochin v. People of California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183.   Complaint is also made of an incident during defense counsel's argument.

We deal first with the privilege against self-incrimination.   Here the point made is, of course, that sine People v. Duroncelay, 48 Cal.2d 766, 312 P.2d 690 and People v. Haeussler, 41 Cal.2d 252, 260 P.2d 8 3 preceded Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 which made the privilege against self-incrimination part of the Fourteenth Amendment's due process clause, these cases must be reexamined in the light of Federal standards.

Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908, decided June 20, 1966 holds that the Fifth Amendment's privilege against self-incrimination “protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature, * * *.”  Applying that criterion to a compelled blood test to determine alcohol content, the court said:  “Not even a shadow of testimonial compulsion upon or enforced communication by the accused was involved either in the extraction or in the chemical analysis.   Petitioner's testimonial capacities were in no way implicated;  indeed, his participation, except as a donor, was irrelevant to the results of the test, which depend on chemical analysis and on that alone.”   We are unable to make a constitutional distinction between blood and exhaled air.   The record does not reveal the exact method by which the breathalyzer test is given.   We assume that it may involve a certain amount of active cooperation—such as breathing through the mouth, rather than the nose—while a compelled blood test merely requires the suspect to hold still.   This distinction, if it exists, is not enough.   In Schmerber the Supreme Court seems to approve the many holdings in both state and federal courts to the effect that it does not violate the Fifth Amendment “to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture.”   (Ibid., text accompanying fn. 8.)  (See 8 Wigmore, Evidence, (McNaughton Rev.1961) § 2265.4

 It being settled that there is no constitutional objection to the admissibility in evidence of compelled tests which are not testimonial or communicative in nature, the next question becomes whether the refusal of a suspect to submit to such a test is also admissible.5

Were it not for the footnote in Schmerber quoted in full below6 we should have had little doubt that a refusal to undergo a test which the authorities are authorized to administer over the suspect's objections and the results of which the state may introduce in evidence in spite of the privilege against self-incrimination, may be received without constitutional objection as indicative of a consciousness of a guilt.   The authorities for this proposition are collected in People v. Zavala, 239 Cal.App.2d—*, 49 Cal.Rptr. 129 and need not be repeated.   Cases from other jurisdictions which are almost unanimous to this effect will be found in 87 A.L.R.2d 370, 379–383.7

Since the first paragraph of the Court's footnote immediately precedes its refusal to discuss Schmerber's rejection of the breathalizer test, we cannot escape the conclusion that the footnote in Schmerber which we have quoted is intended to be of some significance to the problem at hand.   If it followed automatically from the admissibility of the blood test that a refusal to submit to a similar test is also admissible, the Supreme Court might conceivably have overlooked the fact that no objection was made at the trial;  instead it chose not to rule on the issue until it was properly presented and it reserved for future consideration the question of the admissibility of incriminating statement which “may be an unavoidable by-product of the compulsion to take the test * * *.”

We think it is futile to guess just how much ground is covered by the court's caveat.   All that we really know is that the court has not ruled—and has gone to some pais to say so—on the admissibility of incriminating statements made at the time when the suspect becomes aware that he is about to be tested.   Such statements can be made in a wide variety of situations.   At one end of the spectrum one might place the suspect who has a genuine, medically sound reason for not wishing to have his skin punctured, such as for example a hemophiliac.   To him the threat of having blood withdrawn creates a truly compulsive situation and any confession he makes in order to avoid the test would be coerced.8  At the opposite end would be incriminating statements of the type which are only indirectly so, that is to say those which, either standing alone or in the light of provable facts, permit the trier of facts to draw an inference of consciousness of guilt.9  We would need a much stronger indication than the quoted footnote in Schmerber to persuade us that all such statements are inadmissible.   No one would rationally contend that a suspect who has been warned of his right to remain silent and who, when told that he is about to be tested, offers the officer a bribe not to test or to change the results of the test, can claim that his offer is inadmissible because it is “testimonial.”

Other policy questions enter this field which the Supreme Court has staked out for future determination.   For example, a policy decision will have to be made in light of the fact that a refusal to take a test may be expressed almost wholly by physical resistance which has only incidental testimonial qualities.   Will the court disallow evidence of verbal refusals but permit it to be shown that the suspect kicked and thrashed as the nurse approached with the needle?   Would such a solution not encourage brutality, the very type of police conduct against which Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 was designed to “sterilize” the police antechamber?  (In re Lopez, 62 Cal.2d 368, 274, 42 Cal.Rptr. 188, 398 P.2d 380.)

We need not pursue the matter further.   Speculation is useless and logic a poor guide in a field where, as elsewhere, “a page of history is worth a volume of logic.”  (New York Trust Co. v. Eisner, 256 U.S. 345, 349, 41 S.Ct. 506.507, 65 L.E. 963.)   About all we can say is that the footnote which we are discussing makes it clear to the bench and bar just how narrow the holding of Schmerber is and how much as been left for future decision.   Certainly, however, the direction of the court's thoughts seems clear:  it points out in the first paragraph of the footnote that there is a difference between compulsion which results in the obtaining of physical evidence and compulsion which results in incriminating statements and that not all statements which are the “by-product— of the legitimate exercise by the police of it privilege to obtain physical evidence will be admissible.

 Without attempting to further analyze the problem, it is our opinion that the type of incriminating statement made here a simple refusal to take the test, which incriminates only because it is probative of a consciousness of guilt, made after a warning10 , is just as admissible as would be an attempted flight from the scene of the test, or an offer to bribe the police.  (People v. Hoyt, 20 Cal.2d 306, 313, 125 P.2d 29;  People v. Moore, 70 Cal.App.2d 158, 163, 160 P.2d 857;  2 Wigmore, Evidence (3rd ed. 1940) §§ 276, 278.)

 We therefore hold that it does not violate the privilege against self-incrimination to permit evidence of a refusal to submit to a test under the simple circumstances involved in this case, so long as the test itself is not “testimonial or communicative”in nature.

It appears to us that what has been said with respect to the breathalizer, also disposes of the portion of the Field Sobriety Examination which would have required defendant to walk a straight line and, perhaps, perform other physical acts.   Although such tests obviously involve active cooperation to a far greater degree than blood tests and possibly breathalizer tests, the evidence obtained is still not of a testimonial or communicative nature.11

 On the other hand the admission into evidence of the defendant's refusal to answer the questions asked as part of the Field Sobriety Examination would have been clearly erroneous, had there been an objection.12  This was an extended interrogation, obviously designed to obtain incriminating answers.   Some of the questions—“How much have you had to drink?”—directly call for incriminating answers.   Others were carefully designed to anticipate defenses which are common in actions of this sort.13

 Unquestionably the exercise of defendant's constitutional right not to answer these questions may not be penalized by permitting the jury to infer a consciousness of guilt therefrom.  (Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106;  People v. Cockrell, 63 Cal.2d 659, 669–670, 47 Cal.Rptr. 788, 408 P.2d 116;  People v. Simmons, 28 Cal.2d 699, 712–721, 172 P.2d 18.)

We believe, however, that the failure of defense counsel to object is fatal to defendant's contentions on appeal.   Admittedly the last twenty-four months have seen major developments in the criminal law which counsel have not been required to anticipate.  (People v. Hillery, 62 Cal.2d 692, 711–712, 44 Cal.Rptr. 30, 401 P.2d 382;  cf. People v. Kitchens, 46 Cal.2d 260, 263, 294 P.2d 17;  People v. Marsden, 234 Cal.App.2d 796, 799–800, 44 Cal.Rptr. 728.)   Although the first decision which followed People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361 which involved the admission of a suspect's silence after a warning appears to be People v. Stewart, 236 Cal.App.2d 27, 31, 45 Cal.Rptr. 712, decided a few weeks after the present case was tried, it had been the settled law of California since 1946 (People v Simmons, 28 Cal.2d 699, 721, 172 P.2d 18) that a refusal to reply to accusatory statements is not admissible where the suspect is attempting to exercise his constitutional privilege against self-incrimination.   In People v. Spencer, 78 Cal.App.2d 652, 178 P.2d 520, the accused had been warned by police that any statement he might give could be used against him.   His silence after a codefendant confessed in his presence was held to be the exercise of his constitutional privilege as a matter of law.  (See also Martinez v. Superior Court, 224 Cal.App.2d 755, 37 Cal.Rptr. 115.)  Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 had been decided two months before the trial in the instant case.  Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 was—as things go in these days—long established law.   In this state it did not require Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, decided June 13, 1966 to move the privilege against self-incrimination from the courtroom to the police station.  “In California it is recognized that the privilege against self incrimination goes to and is with the citizen in the police station.”  (People v. Clemmons, 153 Cal.App.2d 64, 76, 314 P.2d 142, 150.)   We think the precise situation before us is merely an application of principles well established at the time of the trial of this case.   As was said in People v. Alvidrez, 158 Cal.App.2d 299, 302, 322 P.2d 557, 559, concerning an analogous situation:  “The Lawrence case [People v. Lawrence, 149 Cal.App.2d 435, 308 P.2d 821] did not establish a new rule of law, or overrule an old one.   It simply interpreted constitutional guarantees afforded to defendant as requiring, upon demand, the prosecution to divulge the name of a participant—informer.”   In short, we do not read People v. Hillery, supra, and People v. Kitchens, supra, as excusing counsel from putting two and two together when confronted with objectionable evidence.14

 We now turn to the instruction given by the court.   Here, of course, no objection was necessary.  (People v. Starkey, 234 Cal.App.2d 822, 829, 44 Cal.Rptr. 738;  Pen.Code, §§ 1176, 1259.)   It read as follows:

“YOU ARE INSTRUCTED that in a case where a defendant is accused of violation Section 23102 of the Vehicle Code it is permissible to prove that the defendant was offered a breathalyzer test or other sobriety test after he or she has been aware of the nature of the test and its effect.   The fact that such test is refused under such circumstances is not sufficient standing alone and by itself to establish the guilt of a defendant but is a fact which if proven may be considered by you in the light of all other proven facts in deciding the question of guilt or innocence.   Whether or not such conduct shows a consciousness of guilt and the significance to be attached to such a circumstance are matters for your determination.”

It is argued that this instruction violates Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 in that it penalizes the exercise of defendant's constitutional privilege by “making its assertion costly.”   To the extent, however, that the instruction directs the jury's attention to refusals by defendant to submit to tests which would not have violated any of his constitutional rights, it stands on the same footing as other commonly given instructions on acts or declarations indicating a consciousness of guilt.  (For example, CALJIC 30–A (revised);  30–B (new);  36, dealing respectively with falsehoods, efforts to fabricate evidence and flight;  see also Pen. Code, § 1127 c.)   Thus the same reasons which made the evidence of the refusals to take the breathalyzer test and to “walk the line” admissible, validate the instruction.

On the other hand if the instruction could reasonably be construed to refer to defendant's refusal to answer questions, it would undoubtedly violate Griffin, nor would we be able to say that there was no error because the evidence of such refusal had been admitted without objection.   In the ordinary case it is, of course, not lost on the jury that the defendant has not testified, yet, as the Supreme Court said in Griffin:  “What the jury may infer, given no help from the court, is one thing.   What it may infer when the court solemnizes the silence of the accused into evidence against him is quite another.”   (Griffin v. State of California, supra, Ibid., p. 614, 85 S.Ct. p. 1233.)  yet we find it difficult to believe that any harm was done.   The only test to which the instruction specifically refers is the breathalyzer test.   The only possible reference in the instruction to the question asked of Sudduth is the phrase “or other sobriety test.”   while it is true that Officer Wilson referred to the questions as being a standard part of the Field Sobriety Examination, it seems highly unlikely that the jurors understood this phrase to refer to the “question and answer” part of the test.   This conviction on our part is strengthened by the fact that the entire phrase reads:  “* * * or other sobriety test after he * * * has been aware of the nature of the test and its effect.”   No one has to be made aware of the nature and effect of questions and answers.   We therefore hold that there was no error.   If there was, we think it was not prejudicial.  (People v. Bostick, 62 Cal.2d 820, 823–827, 44 Cal.Rptr. 649, 402 P.2d 529.)

 As far as the argument of the prosecutor is concerned, it too was directed almost entirely to the refusal to “take this blood alcohol test” and the refusal to “walk the line.”   The only reference to any of the questions and answers was to the fact that defendant had said that he had had two “drinks.”   Of course this answer this was actually given by him was admissible and the argument proper because defendant had been expressly warned.

 We find no misconduct in the argument.   Merely for the record we note that no objection was made at the time.

Turning to the claim of error based on Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923, defendant's reasoning is not very clear.   He talks “confrontation” but what he is really saying is that, had he submitted to the test, it would have been less “one-sided” had his attorney been present to keep the police honest.

 This point is fully answered in People v. Gilbert, 63 Cal.2d 690, 708–709, 47 Cal.Rptr. 909, 408 P.2d 365, holding that the right to counsel does not encompass a right to have counsel present at a lineup.   As we have previously noted, the United States Supreme Court has granted certiorari in People v. Gilbert.   The issue of Gilbert's identification at the lineup without notice and without the presence of counsel has been designated as one to be argued.   We are, of course, bound by the decision of our own Supreme Court.   In any event, we point out that a rule requiring the presence of counsel at a lineup would not necessarily apply to tests for blood alcohol content, evidence which disappears with every passing minute.  (In re Newbern, 175 Cal.App.2d 862, 866, 1 Cal.Rptr. 80, 79 A.L.R.2d 901.)   We believe that our rule which entitles a suspect, in cases such as this, to have a physician of his own choosing perform his own test is an ample safeguard.  (In re Newbern, 55 Cal.2d 508, 511, 11 Cal.Rptr. 551, 360 P.2d 47;  In re Newbern, 175 Cal.App.2d 862, 866, 1 Cal.Rptr. 80, 79 A.L.R.2d 901.)

Rochin v. People of California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 is easily disposed of.   There is absolutely no evidence in the record on the method of administering the breathalizer test.   Without an adequate evidentiary foundation, we are not going to assume that it equals or approaches the brutality of the police methods employed in Rochin.

Finally, there is the incident during defense counsel's argument previously mentioned.   We set it forth in its entirety in the footnote.15

 We see no error.   When defense counsel was stopped he appeared to be talking about “the test” and not the questions.   It was certainly more than reasonable for the prosecutor and the court to interpret his remarks as putting it to the jury that it is wrong for the law to permit a suspect to refuse the test, yet to admit such refusal in evidence.   While counsel, limited by the court's discretion, may state correct law to the jury and illustrate its application to facts (People v. Linden, 52 Cal.2d 1, 29, 338 P.2d 397) counsel may not state the law erroneously (Ibid., p. 26, 338 P.2d p. 410) nor suggest to the jury that the law is bad and they should not follow it.  (People v. Mitchell, 74 Cal.App. 164, 170, 240 P.36.)

The judgement is affirmed.


1.   As made, the objection was totally inadequate to raise the host of constitutional problems which occurred to counsel on appeal.   The only reason why we feel it proper to discuss these issues at all is that if we did not deal with them from the point of view of the admissibility of the evidence, we would still be faced with the fact that the trial court specifically instructed the jury on the significance of defendant's refusal to submit to the breathalizer test.   No objection to this instruction was necessary.  (Pen.Code, §§ 1176, 1259.)

2.   We are therefore not confronted with the problem of the admissibility of a refusal to take a test after the arresting officer has assured the suspect that he is free to so refuse.

3.   Both Duroncelay and Haeussler involved the extraction of blood for an alcohol test from a defendant who had not consented.   In Haeussler the defendant was unconscious.   In Duroncelay he made a gesture indicating an objection when the nurse approached him with the needle.

4.   On June 12, 1966 the Supreme Court granted certiorari in People v. Gilbert, 63 Cal.2d 690, 47 Cal.Rptr. 909, 408 P.2d 365.   The grant of certiorari was limited to four issues, one of which is the admissibility of a handwriting specimen obtained after Gilbert's arrest.

5.   We note that as far as the blood test is concerned, such a refusal, even if persisted in, does not necessarily prevent the obtaining of blood.   On the other hand the “walk the line” and similar tests are simply unobtainable unless the suspect cooperates.   The record does not sufficiently inform us whether a breathalizer test can be made in spite of continuing refusal to cooperate.

6.   “This conclusion would not necessarily govern had the State tried to show that the accused had incriminated himself when told that he would have to be tested.   Such incriminating evidence may be an unavoidable by-product of the compulsion to take the test, especially for an individual who fears the extraction or opposes it on religious grounds.   If it wishes to compel persons to submit to such attempts to discover evidence, the State may have to forego the advantage of any testimonial products of administering the test—products which would fail within the privilege.   Indeed, there may be circumstances in which the pain, danger, or severity of an operation would almost inevitably cause a person to prefer confession to undergoing the ‘search,’ and nothing we say today should be taken as establishing the permissibility of compulsion in that case.   But no such situation is presented in this case.   See text at n. 14 infra.“Petitioner has raised a similar issue in this case, in connection with a police request that he submit to a ‘breathalyzer’ test of air expelled from his lungs for alcohol content.   He refused the request, and evidence of his refusal was admitted in evidence without objection.   He argues that the introduction of this evidence and a comment by the prosecutor in closing argument upon his refusal is ground for reversal under Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106.   We think general Fifth Amendment principles, rather than the particular holding of Griffin, would be applicable in these circumstances, see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, n. 37.   Since trial here was conducted after our decision in Malloy v. Hogan, supra, making those principles applicable to the States, we think petitioner's contention is foreclosed by his failure to object on this ground to the prosecutor's question and statements.”

FOOTNOTE.  FN* 239 A.C.A. 810, 817–819.

7.   We refer only to those decisions where the court, faced with the question of the admissibility of the refusal, had previously decided that there was no constitutional or statutory basis for finding that the suspect had a right to refuse the test.   People v. Zavaka, supra, held inadmissible a refusal to submit to a Nalline test because section 11723 of the Health and Safety Code gave the particular suspect a right to refuse.

8.   We gather from the quoted footnote in Schmerber that the Supreme Court suggest that in such an extreme situation the test itself would be impermissible.

9.   We recognize, of course, that in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, decided June 13, 19866, the Supreme Court said that the privilege against self-incrimination does not distinguish degrees of incrimination and applies to inculpatory statements as well as to exculpatory ones, which prove guilt by implication.

10.   The precise significance of a warning in this context need not be further discussed.   Telling the suspect that he is about to be tested is not an “interrogation.”   At the same time it must be recognized that a warning is of little use to the suspect if the police threaten to embark upon a course of conduct with him of which he disapproves and against which he must protest in some manner, if his verbal protests against the police conduct are thereafter admitted against him.

11.   These tests do, of course, involve a certain amount of “communication.”   The probative value of the failure of the suspect to pass the tests depends entirely on the assumption that he is impliedly representing that he is doing the best he can.   However, this element of an implied communication is certainly no stronger here than in the cases having to do with handwriting exemplars and voice identification which also involve an implied assertion that the writer is not disguising his style, nor the speaker his voice.

12.   We are proceeding on the assumption that the trial court was bound by the rule declared in People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361, but that the apparently somewhat stricter requirements of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 are not applicable to the trial or review of this case.

13.   Arguably the questions concerning the defendant's whereabouts and the time of day present a slightly different problem from the others, since the suspect's communication is requested not for the purpose of learning the facts asserted by the communication, but to gain an insight into his awareness.   In view of the conclusion we have reached it is unnecessary to pursue this possible distinction.

14.   It will be noted that the Supreme Court in Schmerber did not reach the question of that defendant's refusal to take a breathalizer test, because no objection was made at the trial, although the case was tried before Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106.   It felt that “general Fifth Amendment principles” were applicable and that Schmerber's counsel had been sufficiently put on notice by Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653.

15.   “I submit there is a lot of evidence about refusing to take the test.   It is always kind of puzzling to me how they can advise somebody, ‘Now, listen, Mr. Sudduth, you don't have to take this test if you don't want to.   You can see an attorney if you want to.’   Or “You don't have to make any statement if you don't want to.'   And then they are amazed or astounded when the man says, ‘Well, you advised me of rights;  I'll follow your advice.   I won't take the test.’   They make a bid thing out of refusal to take the test.   I am wondering about the effect of a Constitutional right if when you take advantage of it and it is used against you in court.“MR. REISNER:  Well, your Honor, that would be a matter of law and it has certainly been decided it is a valid comment and inference.”THE COURT:  The last comment of counsel will be stricken.   They are not to decide the legal aspects of what is a Constitutional right and what is not.   That will be stricken.“They are not sitting here as the Supreme Court.   I grant you they look as wise as the Supreme Court sitting up there but they cannot decide that issue.“MR. OLLESTAD:  Thank you.”

KAUS, Justice.

SHINN, P.J., and FORD, J., concur.