Opinion
No. 83-CA-93
Decided July 31, 1984.
Criminal law — Constitutional privilege against self-incrimination relates only to testimonial or communicative acts, not to non-communicative evidence — Retroactivity analyzed.
O.Jur 3d Criminal Law § 329.
The case of State v. Buchholz, 11 Ohio St.3d 24, which overruled State v. Pyle, 19 Ohio St.2d 64, and extended Miranda to misdemeanors, does not apply retroactively to offenses committed prior to May 9, 1984.
APPEAL: Court of Appeals for Greene County.
Mr. Joe R. Fodal, for appellee.
Mr. Thomas R. Stafford, for appellant.
The defendant, John E. Blue, entered a plea of no contest to a charge of driving while under the influence of alcohol in violation of R.C. 4511.19(A)(3). He was found guilty of the alleged offense, and from the judgment and sentence thereupon entered in the Fairborn Municipal Court, Blue has perfected an appeal to this court.
Before entering a plea, Blue filed a motion to suppress any and all written or oral statements made by him at or about the time of his arrest, and at the subsequent hearing, he amended his motion to include the suppression of the results of an intoxilyzer test administered to him a short time after his apprehension. The motion to suppress was overruled in its entirety, and this ruling provides the basis for the only assignment of error set forth in this appeal.
The warnings required by Miranda v. Arizona (1966), 384 U.S. 436 [36 O.O.2d 237], were not given when Blue was arrested, but the recent holding of the Supreme Court of Ohio in State v. Buchholz (1984), 11 Ohio St.3d 24, which extends Miranda to misdemeanors, does not apply retroactively to the offense involved in this case. Johnson v. New Jersey (1966), 384 U.S. 719.
Furthermore, the protection of the constitutional privilege against self-incrimination afforded by the Miranda warnings relates only to the testimonial or communicative acts of the person to whom the privilege applies. It does not apply to non-communicative evidence, and with or without the advice of counsel, such protection does not extend to the physical evidence acquired from the intoxilyzer machine. Schmerber v. California (1966), 384 U.S. 757.
In the application of controlling law at the time of the hearing of the motion to suppress, no prejudicial error intervened, and the judgment of the Fairborn Municipal Court will be affirmed.
Judgment affirmed.
BROGAN, P.J., and WILSON, J., concur.