Appeal from Circuit Court, Marion County. Jena V. Schlegel, Judge. No. 74546.
Bruce W. Williams, Salem, argued the cause and filed the briefs for appellant.
James A. Hearn, Deputy District Attorney, Salem, argued the cause for respondent. With him on the brief was Gary D. Gortmaker, District Attorney, Salem.
Schwab, Chief Judge, and Langtry, Judge. Thornton, Judge, dissenting.
This appeal presents the question of whether it was error to admit into evidence in a negligent homicide trial the results of a blood alcohol test showing an alcohol content of .24 per cent*fn1 when the blood sample which was tested was taken from the defendant after the defendant had expressly refused the state permission to take a blood sample from him. Under the terms of the Implied Consent Law, ORS 483.634 et seq, as interpreted by State v. Fogle, 254 Or 268, 459 P2d 873 (1969), the results of the test should not have been received in evidence.
The night of September 14, 1971, defendant was driving a pickup truck north on U.S. 99E. Near Gervais defendant's truck and an automobile collided head-on. The driver of the automobile later died from injuries received in the accident.
One eyewitness testified that the collision occurred in the southbound lane, i.e., that defendant was over the center line. Pictures of the damage to the vehicles and of tire marks, etc., on the highway were consistent with the state's theory that defendant had been driving in the wrong, i.e., southbound, lane, and was turning back toward his lane at the time of the collision. Six witnesses testified that they were in defendant's presence in the hours following the accident; each testified that he had formed the opinion defendant was under the influence of intoxicating liquor.
Defendant was taken by ambulance to a hospital. A state policeman and deputy district attorney investigating the accident came to the hospital and asked defendant's permission to take a blood sample for purposes of a chemical sobriety test. Defendant refused. Neither party contends that the defendant was so intoxicated that he could not understand the request. In spite of his refusal and at least verbal resistance, a blood sample was withdrawn from defendant's arm.*fn2
No constitutional issue is presented. Nothing in the United States or Oregon constitutions would prohibit a policeman who has probable cause to believe a person was driving under the influence of alcohol from requiring that person to submit to a chemical test of his blood, breath, saliva, urine, etc. Schmerber v. California, 384 U.S. 757, 86 S Ct 1826, 16 L Ed 2d 908
(1966); Heer v. Dept. of Motor Vehicles, 252 Or 455, 450 P2d 533 (1969); State v. Cram, 176 Or 577, 160 P2d 283, 164 ALR 952 (1945). As in other situations where the police have probable cause to make a search, the driver's consent or lack thereof would be irrelevant. Schmerber v. California, supra.
However, in adopting the Implied Consent Law, the legislative assembly did not fix the statutory limits at the constitutionally permissible limits. Instead, it is apparent that in some instances drivers have a statutory right under the Implied Consent Law to refuse to submit to any and all chemical sobriety tests.
The material provisions of the Implied Consent Law provide:
"Any person who operates a motor vehicle upon the highways of this state shall be deemed to have given consent, subject to ORS 483.634 to 483.646, to a chemical test of his breath for the purpose of determining the alcoholic content of his blood if arrested for driving a motor vehicle while under the influence of intoxicating liquor in violation of subsection (2) of ORS 483.992 or of a municipal ordinance * * *." ORS 483.634 (1).
"If a person under arrest for driving a motor vehicle while under the influence of intoxicating liquor in violation of subsection (2) of ORS 483.992 or of a municipal ordinance, refuses the request of a police officer to submit to a chemical test of his breath as provided in subsection (1) of this section * * * no test shall be given, but the police officer shall prepare a sworn report of the refusal and cause it to be delivered to the division * * *." ORS 483.634 (2). (Emphasis supplied.)
"If a person under arrest refuses to submit to a chemical test of his breath under the provisions of subsection (2) of this section or refuses to consent
to chemical tests as provided by ORS 483.636, evidence of his refusal shall not be admissible in any civil or criminal action, suit or proceeding arising out of acts alleged to have been committed while the person was driving a motor vehicle on the highways while under the influence of intoxicating liquor." ORS 483.634 (3). (Emphasis supplied.)
"Nothing in ORS 483.634 is intended to, in lieu of a request for an administration of a breath test, preclude the administration of a chemical test of the blood, urine or saliva of any person if, when requested by a police officer, the person ...