In re Koehne, 356 P.2d 179 (Cal. 1960). · Go Syfert
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In re Koehne, 356 P.2d 179 (Cal. 1960). Cases Citing This Book View Copy Cite
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cited 2× by 1 distinct case, last quoted 1985 · …it is only when he is denied an opportunity, reasonable under the circumstances, to procure a timely sample of his blood that he can properly claim a denial of due process. ✓
cited 2× by 1 distinct case, last quoted 1993 · …the law does not impose upon law enforcement agencies the requirement that they take the initiative, or even any affirmative action, in procuring the evidence deemed necessary to the defense of an accused at p. 759 ✓
cited 2× by 1 distinct case, last quoted 1985 · …the law does not impose upon law enforcement agencies the requirement that they take the initiative, or even any affirmative action, in procuring the evidence deemed necessary to the defense of an accused. ✓
136 citation events (6 in the last 25 years) across 18 distinct courts.
Strongest positive: People v. Sanchez (calctapp, 1998-03-23)
Treatment trajectory · 1961 → 2026 · click a year to view as-of
1961 1993 2026
Top citers, strongest first. 18 distinct citers. How cited ↗
discussed Cited as authority (rule) People v. Sanchez
Cal. Ct. App. · 1998 · confidence medium
(See In re Koehne (1960) 54 Cal.2d 757, 759 [ 8 Cal.Rptr. 435 , 356 P.2d 179 ] [‘the law does not impose upon law enforcement agencies the requirement that they take the initiative, or even any affirmative action, in procuring the evidence deemed necessary to the defense of an accused’]; People v. Hogan (1982) 31 Cal.3d 815, 851 [ 183 Cal.Rptr. 817 , 647 P.2d 93 ] [There is no general duty on the part of the police or the prosecution to obtain evidence, conduct any tests, or ‘ “gather up everything which might eventually prove useful to the defense.” ’].)” (In re Littlefield, sup…
discussed Cited as authority (rule) State v. Livesay
Tenn. Crim. App. · 1996 · confidence medium
See, Scarborough v. State, 261 So.2d 475 (Miss.1972) ce rt. denied 410 U.S. 946 , 93 S.Ct. 1353 , 35 L.Ed.2d 613 ; Brown v. Municipal Court, 86 Cal.App.3d 357 , 150 Cal.Rptr. 216 (2d Dist.1978); State v. Lewis, [ 266 S.C. 45 , 221 S.E.2d 524 ] Supra at 526; and In Re Koehne, 54 Cal.2d 757 , 8 Cal.Rptr. 435 , 356 P.2d 179, 180-81 (1960).
discussed Cited as authority (rule) In Re Littlefield (2×)
Cal. · 1993 · confidence medium
(See In re Koehne (1960) 54 Cal.2d 757, 759 [ 8 Cal.Rptr. 435 , 356 P.2d 179 ] [“the law does not impose upon law enforcement agencies the requirement that they take the initiative, or even any affirmative action, in procuring the evidence deemed necessary to the defense of an accused”]; People v. Hogan (1982) 31 Cal.3d 815, 851 [ 183 Cal.Rptr. 817 , 647 P.2d 93 ] [There is no general duty on the part of the police or the prosecution to obtain evidence, conduct any tests, or “ ‘gather up everything which might eventually prove useful to the defense.’ ”].) Thus, in light of the purp…
discussed Cited as authority (rule) People v. Windham
Cal. Ct. App. · 1987 · confidence medium
(People v. Wright (1985) 39 Cal.3d 576, 590 [ 217 Cal.Rptr. 212 , 703 P.2d 1106 ], citing People v. Ruthford (1975) 14 Cal.3d 399, 405-406 [ 121 Cal.Rptr. 261 , 534 P.2d 1341 ]; see also People v. Nation (1980) 26 Cal.3d 169, 175-176 [ 161 Cal.Rptr. 299 , 604 P.2d 1051 ].) However, there is no obligation upon the People to “ ‘gather up everything which might eventually prove useful to the defense.’ ” (People v. Hogan (1982) 31 Cal.3d 815, 851 [ 183 Cal.Rptr. 817 , 647 P.2d 93 ], quoting People v. Watson (1977) 75 Cal.App.3d 384, 400 [ 142 Cal.Rptr. 134 ]; People v. Harris (1985) 165 Ca…
discussed Cited as authority (rule) People v. Harris (2×)
Cal. Ct. App. · 1985 · confidence medium
Accordingly, the principle has evolved that in general "it is the accused who must act to protect his interests...." (See In re Koehne (1960) 54 Cal.2d 757, 759 [ 8 Cal. Rptr. 435 , 356 P.2d 179 ]; People v. Watson (1977) 75 Cal. App.3d 384, 399 [ 142 Cal. Rptr. 134 ].) Some actions undertaken by the defense may result in benefit to the prosecution, yet due process is not violated.
discussed Cited as authority (rule) State v. Choate
Tenn. Crim. App. · 1983 · confidence medium
See, Scarborough v. State, 261 So.2d 475 (Miss.1972) cert. denied 410 U.S. 946 , 93 S.Ct. 1353 , 35 L.Ed.2d 613 ; Brown v. Municipal Court, 86 Cal.App.3d 357 , 150 Cal.Rptr. 216 (2d Dist.1978); State v. Lewis, Supra at 526; and In Re Koehne, 54 Cal.2d 757 , 8 Cal.Rptr. 435 , 356 P.2d 179, 180-81 (1960).
discussed Cited as authority (rule) Commonwealth v. Alano (2×)
Mass. · 1983 · confidence medium
Rather it is the accused who must act to protect his interests, and it is only when he is denied an opportunity, reasonable under the circumstances, to procure a timely sample of his blood that he can properly claim a denial of due process.” In re Koehne, 54 Cal. 2d 757, 759 (1960), citing In re Newbern, supra. See In re Martin, 58 Cal. 2d 509, 512 (1962); Brown v. Municipal Court of Los Angeles County, 86 Cal. App. 3d 357, 361-363 (1978).
discussed Cited as authority (rule) People v. Newsome (2×)
Cal. Ct. App. · 1982 · confidence medium
In the latter case, the duty to preserve is defined as a duty to “ ‘undertake reasonable efforts to obtain information by which the defense may locate such an informer.’ ” (Id., 12 Cal.3d at p. 650, italics added.) Significantly, the prosecution is not itself required to subpoena the witness; to the contrary, “[generally speaking the People may select and choose which witnesses they wish to use to prove their case against a defendant. ” (People v. Mejia (1976) 57 Cal.App.3d 574, 580 [ 129 Cal.Rptr. 192 ].) The rule that the prosecution is not required to produce a material informan…
cited Cited as authority (rule) City of Blaine v. Suess
Wash. Ct. App. · 1979 · confidence medium
In re Koehne, 54 Cal. 2d 757 , 356 P.2d 179 , 8 Cal. Rptr. 435, 436 (1960).
discussed Cited as authority (rule) People v. Valenzuela (2×)
Cal. Ct. App. · 1978 · confidence medium
In In re Koehne (1960) 54 Cal.2d 757, 759 [ 8 Cal. Rptr. 435 , 356 P.2d 179 ], the court commented that "it is only when he is denied an opportunity, reasonable under the circumstances, to procure a timely sample of his blood that he can properly claim a denial of due process...." (Italics added.) II The Validity of Rule 977 of the California Rules of Court This case is before us pursuant to our order transferring the cause to this court for hearing and decision, based upon our determination from the opinion of the appellate department — certified for publication — that the transfer was ne…
discussed Cited as authority (rule) Brown v. Municipal Court
Cal. Ct. App. · 1978 · confidence medium
(In re Newbern (1961) 55 Cal.2d 508, 513 [ 11 Cal.Rptr. 547 , 360 P.2d 43 ].) While there is no duty or obligation on law enforcement officers to administer a blood test (In re Koehne (1960) 54 Cal.2d 757, 759 [ 8 Cal.Rptr. 435 , 356 P.2d 179 ]; McCormick v. Municipal Court (1961) 195 Cal.App.2d 819, 821 [ 16 Cal.Rptr. 211 ]), in no event can an officer frustrate the reasonable efforts of an accused to obtain a timely sample of his blood without denying him due process of law.
discussed Cited as authority (rule) People v. Watson
Cal. Ct. App. · 1977 · confidence medium
(In re Martin (1962) 58 Cal.2d 509, 512 [ 24 Cal.Rptr. 833 , 374 P.2d 801 ]; In re Koehne (1960) 54 Cal.2d 757, 759 [ 8 Cal.Rptr. 435 , 356 P.2d 179 ]; People v. Jenkins (1974) 40 Cal.App.3d 1054, 1056-1057 [ 115 Cal.Rptr. 622 ]; In re Newbern (1959) 175 Cal.App.2d 862, 866 [ 1 Cal.Rptr. 80 , 78 A.L.R.2d 901 ].) “. . .
discussed Cited as authority (rule) People v. Johnson
Cal. App. Dep’t Super. Ct. · 1976 · confidence medium
In re Koehne (1960) 54 Cal.2d 757, 759 [ 8 Cal.Rptr. 435 , 356 P.2d 179 ]; In re Newbern (1959) 175 Cal.App.2d 862, 866 [ 1 Cal.Rptr. 80 , 78 A.L.R.2d 901 ], Each of these cases involved tests for alcohol contained in blood.
discussed Cited as authority (rule) Kesler v. Department of Motor Vehicles (2×)
Cal. · 1969 · confidence medium
As we have previously stated in In re Koehne, 54 Cal.2d 757, 759 [ 8 Cal.Rptr. 435 , 356 P.2d 179 ], and in In re Newbern, 55 Cal.2d 508, 511 [ 11 Cal.Rptr. 551 , 360 P.2d 47 ], all that due process requires in the preservation of the rights of such persons is the availability of an opportunity for defendant to obtain a timely sampling of his blood in the manner required by law.
discussed Cited as authority (rule) McCormick v. Municipal Court
Cal. Ct. App. · 1961 · confidence medium
(In re Newbern, 175 Cal.App.2d 862 [ 1 Cal.Rptr. 80 ]; In re Koehne, 54 Cal.2d 757, 760 [ 8 Cal.Rptr. 435 , 356 P.2d 179 ]; In re Newbern, 55 Cal.2d 500, 507 [ 11 Cal.Rptr. 547 , 360 P.2d 43 ].) In the second Newbern case, our Supreme Court stated (p. 514), “The denial of an opportunity to procure a blood test on a charge of intoxication prevents the accused from obtaining evidence necessary to his defense and is a denial of due process of law entitling him to his discharge.
discussed Cited as authority (rule) In Re Newbern
Cal. · 1961 · confidence medium
(In re Koehne, 54 Cal.2d 757, 760 [ 8 Cal.Rptr. 435 , 356 P.2d 179 ]; In re Newbern, 175 Cal.App.2d 862 [ 1 Cal.Rptr. 80 ].) The availability of such an opportunity is all that due process requires in the preservation of an accused’s rights.
discussed Cited "see" Commonwealth v. Gallagher (2×)
Pa. Commw. Ct. · 1971 · signal: see · confidence high
See In re Newbern, 175 Cal. App. 2d 862 , 1 Cal. Rptr. 80 (1959) and In re Koehne, 8 Cal. Rptr. 435 , 356 Pac. 2d 179 (1960).
examined Cited "see, e.g." State v. Larivee (6×)
Minn. · 2003 · signal: see, e.g. · confidence low
See, e.g., In re Koehne, 54 Cal.2d 757 , 8 Cal.Rptr. 435 , 356 P.2d 179, 180-81 (1960); Commonwealth v. Alano, 388 Mass. 871 , 448 N.E.2d 1122, 1126 (1983); State v. Snipes, 478 S.W.2d 299, 303 (Mo.1972); State v. Dake, 247 Neb. 579 , 529 N.W.2d 46, 49 (1995); and Schroeder v. State, 105 Nev. 179 , 772 P.2d 1278, 1281 (1989).
Retrieving the full opinion text from the archive…
In Re Rudolph J. Koehne, on Habeas Corpus.
Crim. No. 6737.
California Supreme Court.
Oct 27, 1960.
356 P.2d 179
1960 Cal. LEXIS 206
Richard E. Erwin, under appointment by the Supreme Court, for Petitioner. Roger Arnebergh, City Attorney (Los Angeles), Philip E. Grey, Assistant City Attorney, and William E. Doran, Deputy City Attorney for Respondent.
White.
Cited by 43 opinions  |  Published
WHITE, J.

The petitioner, Rudolph J. Koehne, was convicted by a jury in the Municipal Court of the Los Angeles Judicial District of three violations of section 41.27(a) of the Los Angeles Municipal Code (drunk in and about a public place), occurring on the 16th, 17th and 19th of July, 1960. He was sentenced to 50 days imprisonment in the city jail for each violation, the sentences to run consecutively.

The petitioner alleges that law enforcement officers denied him the right to call and obtain the services of a private physician for the purpose of withdrawing samples of blood and determining the alcoholic content thereof. Based on such allegations, and the contention that the denials of the alleged requests constitute a denial of due process of law (see In re Newbern, 175 Cal.App.2d 862 [1 Cal.Rptr. 80]), an order to show cause was issued and the petitioner was ordered released on bail in the sum of $500 pending the final determination of this proceeding. Counsel was appointed to represent the petitioner.

In the Newbern case it was held to be a denial of due process of law to refuse to permit a person charged with being drunk in a public place to call a doctor, at his own expense, to take a sample of his blood for the purpose of determining the percentage of alcohol present therein, as evidence necessary to his defense. It was held to follow in the Newbern case that, as every person accused of crime, including drunks, has a constitutional right to a fair trial and the right to summon[*759] witnesses in his own defense (Const., art. I, § 13), that such right cannot, consistent with due process of law, be denied by the simple expedient of not affording to an accused a reasonable opportunity to attempt to procure a timely sample of his blood. It is significant, however, that the law does not impose upon law enforcement agencies the requirement that they take the initiative, or even any affirmative action, in procuring the evidence deemed necessary to the defense of an accused. Rather it is the accused who must act to protect his interests, and it is only when he is denied an opportunity, reasonable under the circumstances, to procure a timely sample of his blood that he can properly claim a denial of due process. (In re Newbern, supra, 175 Cal.App.2d 862, 866 [1 Cal.Rptr. 80].)

In the present case the return to the order to show cause fails to bear out the allegations of the petitioner. His testimony, and the testimony which he elicited from the arresting officers on cross-examination, fail to demonstrate that he was not afforded a reasonable opportunity to procure a private physician at his own expense. As to the first violation, that occurring on the 16th of July, the petitioner testified in the trial court that when informed by the officer that he was being arrested as a drunk, “I asked him for the blood test, to be allowed to prove what he’s alleging.” The only testimony relating to the officer’s response is that of the officer who, when questioned by the petitioner as to whether he would be allowed to have a blood test, responded: “I stated that you could, at your own expense, at the time you were taken down at the jail you could phone your own doctor and have him come down and take your blood test. ’ ’

As to the second arrest, that occurring on July 17, the petitioner testified that he asked the arresting officer, at the time of the arrest: “I’ll be allowed to take a blood test?” The only testimony of the response of the officer was that the blood test would be at the petitioner’s own expense.

At the time of the final arrest the arresting officer testified that the defendant made no request for a blood test. The petitioner testified only that ‘ ‘ I asked the officer for the blood test, yes, I told him I was going to request a blood test. He doesn’t recall it. Like he states, he makes numerous arrests and, of course, he might not even have heard me. I don’t know, may not recollect it. ’ ’

The foregoing fails to demonstrate that the petitioner[*760] ever made a request that he he permitted to procure a doctor at his own expense. It is true that he indicated his desire to have blood tests taken, but he never stated that he was in a position, or was willing, to bear the expense of calling his doctor. Nor does it appear that he made known his wishes at the time of “booking” at the jail but only at the times and places of his arrests when arrangements for the attendance of a doctor could not reasonably be made. It further appears that at the time of his arrests, at least on the two occasions where there is no dispute as to whether he requested blood tests, he was advised that he could make arrangements at his own expense. In these circumstances it cannot be successfully contended that the .petitioner was denied the rights here involved. Rather, it appears, the petitioner failed to avail himself of rights which the arresting officers advised him were his. While, as stated, one accused of being drunk is entitled to a reasonable opportunity to procure a timely sample of his blood at his own expense, it cannot be reasonably held that, even though such a request is made to the arresting officer, it is the latter’s duty while escorting the prisoner to a police call box or otherwise at the scene of the arrest, to permit his prisoner to telephone a physician. The request should be made at the police station when the arrested person is “booked” and where telephonic facilities for making such a call are available. In the instant ease the record is barren of any evidence that the petitioner made such a request to the jailer or other officers upon or after his arrival at the station. For the foregoing reasons the petition for a writ of habeas corpus on the grounds urged lacks substance and is without merit.

The order to show cause is discharged, the petition is denied, and the petitioner is remanded to custody.

Gibson, C. J., Traynor, J., Schauer, J., McComb, J., Peters, J., and Dooling, J., concurred.