*1 78 estoppel.
different defense of point A plead- neither raised tion. we conclude that did not ings put So court nor ordinarily issue at the trial spirit abuse its discretion nor violate cannot be considered for the first time on of the rules appeal.4 refusаl. judgment
In trial the instant court is af- action the defendants firmed; statutory usury; plaintiff. waived their defense of costs are awarded to facts were known to them the time were, fact, CROCKETT, pleading pleaded; HENRIOD, their J., and C. they merely ELLETT, failed to assert thе defense of JJ., TUCKETT concur. usury. only proposed effect their
amendment would be withdraw their defense, statutory
waiver of not be- this
cause of new evidence revealed which was trial, but,
at the because their de- asserted inadequate pre-
fenses were for them to vail. trial Under these circumstances the 457 969 court did not abuse its its re- discretion Utah, Respondent, STATE of Plaintiff and plead- permit fusal an amendment ings. ROBINSON, LaVell Defendant Appellant.
Finally, defendants contend that the entire transaction was unconscionable No. 11191. by the courts.
therefore cannot be sustained Supreme Court Utah. They sought cite the usurious interest Aug. 6, 1969. support extracted to their сontention equity claim that court refuse should plaintiff. litigant,
aid to the “unclean” nothing
There is in the record indi- applicability equitable
cates the doc-
trine of unclean or that was ever hands
presented
trial
considera-
court for
414,
Ekker,
(1962),
In re Estate
931
wherein the
373 P.2d
(1967) ;
held
the issue of unclean
Article Section Utah Con- stitution * * * Appeals also lie from justices judgment final in civil and criminal cases to *2 questions law District on Courts both fact, re- and with such and limitations law; provided by strictions as shall be and the decision the District Courts final, appeals except on shall be involving validity or constitu- tionality aof statute. court on has
This number of occasions held that as this the deci- cases such is final and that sion the district court except аppeal not lie where further would constitutionality stat- validity aof ques- time The ute is involved. first right appeal raised was tion of lack to Ross, Mitsunaga Ross, Galen & Salt Lake was in the case this court of Salt City, appellant. Lake for Lee, The City P. v. 49 Utah 926. holding to the same ef- most case recent Romney, Gen., Atty. Vernon B. Lake Salt Peters, City Utah fect Lake is Salt City, respondent. for also See State 652. Lyte, 1006. 284 P. 75 Utah ELLETT, Justice: dis- The the State not moved to appellant was convicted While of a mis- demeanor court. appeal, miss this we nevertheless are with- appealed He district court where and we dis- power out to entertain it novo, again a trial he de was convicted. appeal miss on our motion. This оwn attempts appeal He now to to court this dis- court heretofore on its own motion and in that court claims error below City appeal Logan in the case missed an improperly trial. received evidence Blotter, P. He no makes contention statute charged appeal invalid. dismissed. under which he was is therefore CALLISTER, TUCKETT, JJ., test, that he could refuse take Jr. concur. but that if he did subject he would
losing his driver’s period license for a HENRIOD, year. one J., appellant cоncurs result. then consented
take the so-called breathalizer test.
It was
CROCKETT,
administered to the
(dissenting).
appellant
officer,
Chief
an
Justice
Jensen,
Don C.
at the
Road Po-
Redwood
ap
I dissent from the dismissal of the
lice
approximatеly
Station
45 minutes after
peal.
has,
appellant
believe that the
as
I
the accident occurred.
contends,
Attorney
his counsel
as
In
apparently assumed,
attacking the
General
raised the is
use
the breathalizer
41-6-44.10(a), against
appellant
him
constitutionality
sue
makes
Sec.
as
three contentions:
(Supp.1967), quot
(1)
.1953
that it violated
U.C.A
him;
applies
ed
against
below as it
and thus
self-incrimin-
ation,
I,
necessarily
applies
anyone
(Art.
under the Utah
as it
under
State
12) and the
similar
United
circumstances.
therefore believe
States Constitutions
;
event,
(Fifth Amendment)
properly
any
and that in
incumbent
us
issue,
proper
laid;
my
(2)
meet
no
foundation
part,
desire to
*3
(3)
prosecution
do so.
that
failed to relate
of
results
the test
to the time
back
appellant
was arrested
drunk
appellant
when the
was
his auto-
U.C.A.1953)
41-6-44,
driving (Sec.
fol-
mobile.
lowing an automobile
he
collision in which
at
was involved
39th South and State Street
It
appellant
must be
that
conceded
City
in
p.
Salt Lake
аt
about 10:15 m.
express
does
in
not
a
make
direct
words
February
arresting
1967. The
officer
challenge
“validity
constitution-
appellant,
alia,
told the
had
inter
that
ality
he
urges
statute.”2 But
that
he
tests,
the right to choose one
his
of three
this is the real
point
effect
he
the first
blood,
breath,
designed
urine or
raises,
which are
based on this rationale:
that
to
intoxication;1
degree
determine the
procedure
give
which he was forced to
41-6-44.10(a),
(Supp.
person
Sec.
U.C.A.1953
lieve
to
such
bеen
have
**
1967).
person
“Any
operating a motor
an intoxicated condition
vehicle
this state shall be deemed to
given
City
Peters,
have
his consent
to a chemical
2. See Salt Lake
cited
breath,
opinion;
City
test of his
blood or urine for the
main
see also Salt Lake
purpose
determining
Granieri,
the alcoholic con
398 P.2d
blood, provided
City
Perkins,
tent
such test
that
and Salt Lake
is administered at the
direction
Utah
Qi his breath was accordance with the stat- person Art. II: “No compelled ; rights that give ute this was in violation of as- evidence which will tend incrimi- sured him under the con- nate state federal him.” Both of these states have held stitutions; procedure pur- and that protection thus afforded extends suant to only the statute therefore uncon- not to statements but physi- to real or applied argu- stitutional as This cal him. evidence taken person from the of an impresses being ment me as sound accused and that if it is obtained coer- persuasive. Moreover, cion it when the interests cannot be against used the accused.3 require we should at In the look sub- instant case we are not concerned stance rather get possible than form merits with ramifications protec- of the presented, against such as rather tion here applied self-incrimination as upon than avoid it pro- real technicalities of evidence taken person from the cedure. except accused problem for the herе presented: taking appellant’s of the provision of the Utah Constitution breath. I, dealing with self-incrimination is Art. 12:
Sec. “The accused shall not be com- It important to have in mind that pelled give against himself appellant attack makes his con- wording This differs from the viction any does not involve alleged mis- of the Fifth Amendment of the United conduct arresting of the officer. It “* ** States Constitution which states: following provi- officer’s compelled any nor shall be criminal case sions of the statute was an invasion of ** against a witness himself to be appellant’s rights. The stat- ute Many follow of the state constitutions provide pattern similarly
this federal * * * If such been against that one shall not be a “witness” placed under arrest and has thereafter However, himself. besides our some states requested any been to submit to one of own what would seem to be broader use the above chemical tests refuses give “evidence” * term: shall not one *, given the test shall not be against Ann.St. The Vernon’s himself. per- arresting officer shall advise the Constitution, I, pro- Art. Texas son of his under this section. “ * * *4 * * * * compelled to hear- [provision vides not for notice and shall be * * * *.”; ing] hearing the give against himself *. If at said 21, person Constitution, department thаt the and the determines Oklahoma 593, 381, Apodaca State, Spencer State, Okla.Cr., 3. 146 140 Tex.Cr.R. S.W.2d v. 404 46. P.2d 82 interest, granted the right to submit to a that properly regarded as a privilege
chemical
test and without
concerning
reasonable
legislature
thе
which
* * *,
department may prescribe
cause
the
regulations
refused
revoke,
year,
impose
his license
for one
or
pur-
for the
reasonable conditions
* * *
permit
[provision
pose
to drive.
of conserving
safety
health and
the
appeal
the
public.
*.
expressed
district
of
This view is well
court]
in the
Department
case of Prucha v.
of
The critical
therefore whether
is
Supreme
Motor Vehicles4
Court
following
thus
the statute contravenes
of Nebraska.
Therein
court held that
provisions
quoted
above
of the Utah and
“implied
so-called
law”
their
consent
did
against being
Federal
com-
Constitutions
not violate the
of
self-incrimination clause
pelled
give self-incriminating
evidence.
constitution,
their
which are
both of
similar
questioned
It cannot
that the
be
statute
our
It
own.
stated:
giving
person
a
effect of
a
choice
Legislature may prescribe sanc-
giving
[T]he
of
evidence from his
privi-
tions and
that
conditions on which
risking
something
might
the loss
whiсh
lege
exercised,
may
deny
is
even
very important
right
be
to him:
privilege,
acquired,
that
once
order to
public
upon
drive a motor vehicle
prevent
highways.
unsafe
on the
highways. Therefore,
it would seem that
right
[Citation.]
if
drive is one
basic
еveryone
with which
is endowed as
proposition
agree.5
With this
The
citizenship, he
a natural
incident
should
Supreme
United States
Court has affirmed
required
up
position
give
be
as an alterna-
same
not
case of Reitz v.
Mealey,
26,
33, 36,
24,
314
62
U.S.
S.Ct.
privi-
forfeiting
tivе to
his constitutional
carе
of its
privilege upon
power
using
highway
which it is within the
protect others
legislature
impose
process.
consonant with due
conditions;
that ac-
regulations and
language of
Reverting
attention
cordingly,
application
of the statute tо
noted
question,
will be
it
the statute
case was not a
the defendant in this
viola-
appears to be a clear
that it
what
contains
rights.
tion of his constitutional
policy
with
in accord
declaration of
importance
pre-
Due to
issuе
just
with
referred to
holdings of
sented,
my
impelled
I
forth
have felt
to set
41-6-44.10(a),
approval. The said Sec.
both
views
on the
involved
Supp.)
(1967
U.C.A.1953
However,
propriety
deciding
it.
operating a motor vehicle
Any person
disposition
view of the
of this case
to have
he deemed
in this state shall
my
majority
colleagues, I
it inad-
think
test
given his consent to a chemical
appellant’s points 2
visable to treat
breath,
purpose
blood
urine for
his
except by these brief observations: When
content of
determining the alcoholic
proper
case is before this court on
blood, provided that
test is ad-
ground,
the court should re-
of a
ministered at
the direction
assignments
view whatever other
of error
grounds
be-
having reasonable
officer
require.6
thinks
interests
been
lieve such
to have
error
In that connection
have found no
***
an intoxicated condition.
prejudicial
the defendant which would
(All
reversing
warrant
the conviction.
policy and
In view this declaration of
emphasis mine.)
my opinion
what has been said above
disregard
powers
powers
of the court
herent
this court
in such cir
6. The
requirements
procedural
and re-
unlike
labeled as
strict
are not
cumstances
“pendent”
jurisdiction
see statement
Federal
serious errors
view
Bryant
Turner,
Taussig Wellington
19 Utah 2d
Fund
Courts. See
Inc.,
Cir.,
to in-
P.2d 121.