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Oregon v. Osburn

April 16, 1973

STATE OF OREGON, RESPONDENT,
v.
JOHN LOUIS OSBURN, APPELLANT



Appeal from Circuit Court, Clatsop County. Thomas E. Edison, Judge. No. 28969.

Ronald L. Miller, Astoria, argued the cause and filed the brief for appellant.

Al J. Laue, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.

Schwab, Chief Judge, and Foley and Thornton, Judges.

Schwab

Defendant was convicted of driving with more than .15 percent alcohol in his blood. ORS 483.999 (1).

On appeal he contends his breathalyzer test score should not have been admitted into evidence, because he was never informed of certain rights. This contention raises both constitutional and statutory issues.

As we understand the facts from the partial transcript filed with this appeal, defendant was arrested for driving under the influence of intoxicating liquor.*fn1 He was taken to the police station where the arresting officer asked if he would take a breathalyzer test. Defendant agreed, and took the test. It revealed .18 percent alcohol in defendant's blood. The arresting officer said nothing to defendant about any right to obtain an additional independent chemical blood alcohol test, or to refuse to take the test, or the consequences of a refusal before defendant submitted thereto.

When considering whether the results of blood alcohol tests are admissible in any judicial proceeding it is important to distinguish between constitutional issues and statutory issues.

I

For the purposes of the Oregon and United States Constitutions, a blood alcohol test amounts to a search. 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). Such a search is constitutionally permissible if an arresting officer has probable cause to believe a blood alcohol test will produce evidence of some crime, such as driving under the influence of liquor. Furthermore, the search, i.e., blood alcohol test, can be made without first obtaining a warrant if exigent circumstances are

present. The probable cause question is a factual one in each case -- resolved on the basis of the facts that prompted the officer to initially stop and arrest the driver involved. Once probable cause is established, exigent circumstances justifying a warrantless search are present as a matter of law because of the medical fact that ...


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