Appeal from Circuit Court, Umatilla County. William W. Wells, Judge. No. 5277.
Donald D. Yokom, Pendleton, argued the cause and filed the brief for appellant.
Thomas H. Denney, 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 Langtry, Judge. Thornton, Judge, specially concurring.
Defendant, while driving about 43 miles from Pendleton, ran into a bridge abutment. Defendant and all of his passengers, i.e., Mrs. McMurtry and three of
her children, were injured. One of the children, Patrick McMurtry, aged 5, died the day of the accident.
Four days after the fatal accident defendant was issued a citation for driving with more than .15 percent blood alcohol, a misdemeanor under ORS 483.999 (1). A little more than two months later, defendant was charged with criminally negligent homicide, a felony under ORS 163.145. The district attorney then sought and obtained a dismissal of the misdemeanor charge that was still pending in district court.
At trial on the negligent homicide charge, Mrs. McMurtry testified that defendant had consumed about four or five six-packs of beer on the day of the accident, and that in her opinion defendant was under the influence of intoxicants. There was also evidence that a blood sample taken from defendant at the hospital about two to three hours after the accident contained .16 percent alcohol.
Defendant was convicted, and appeals. He contends the trial court erred in: (1) denying his plea that the negligent homicide trial constituted double jeopardy since the misdemeanor charge arising from the same incident had previously been dismissed; (2) overruling his marital privilege objections to the testimony of Mrs. McMurtry, who he claims is his common law wife under the laws of Idaho; and (3) permitting the blood alcohol test results to be introduced over objections based on claims that the blood sample tested was not obtained in a manner that complied with the Implied Consent Law, ORS 483.634 et seq.
The separate felony and misdemeanor charges brought against defendant in this case were for the same offense under the three-part test of State v.
Brown, 262 Or 442, 448, 497 P2d 1191 (1972). See, State v. Leverich, 14 Or App 222, 511 P2d 1265, Sup Ct review allowed (1973). However, unlike in Brown and Leverich, in this case jeopardy never attached on the misdemeanor charge which was dismissed in the district court on the prosecutor's motion. Thus, the double jeopardy guarantee was no bar to trial on the negligent homicide charge.
Mrs. McMurtry testified that she and defendant had lived together intermittently in Idaho, that she had a child by defendant in Idaho, and that she at least occasionally used the name Mrs. Stover. While her testimony is somewhat equivocal, it is capable of the interpretation that defendant and Mrs. McMurtry regarded themselves as husband and wife while living in Idaho. Defendant did not testify about his relationship with Mrs. McMurtry. Assuming but not deciding that this evidence was sufficient to establish a common law marriage under Idaho law, Mrs. McMurtry could nevertheless testify in this case because of ORS 139.320, which states:
"* * * [I]n all cases of personal violence upon either [spouse] by the other or of personal violence or other unlawful act committed against any minor child of either or both of the parties, the injured party, husband or wife, shall be allowed to testify against the other * * *."
Finally, we hold the blood sample tested for alcohol content was obtained in compliance with ...