*1
21, 1977,
8,
Argued
allowed,
May
December
affirmed
reconsideration
5,
opinion
July
petition
former
adhered to as modified
allowed
review
November
See 35 Or
Kent B. Assistant him With on Salem, argued respondent. cause General, Redden, A. Attorney brief were James General, Laue, and Al J. Solicitor Salem. Schwab, Thornton Judge,
Before Chief Johnson, Judges.
JOHNSON, J.
JOHNSON, J. jury
Defendant was convicted after a trial of manslaughter degree. second On ORS 163.125. appeal assignments defendant makes of error. several assignments His first two are that trial court erred admitting evidence the results of blood-alcohol assignment tests. The third is that the trial court erred granting remaining assignments in not a mistrial. The do not warrant discussion.
Defendant was the driver of an automobile involved single shortly May in a car accident after 4:00 a.m. passenger 20, 1976. The in the vehicle killed and was seriously injured. defendant was Defendant admitted police investigating to a officer at the scene of the drinking accident that he had been beer earlier. The officer also detected a moderate odor of alcohol on defendant’s breath and noted that defendant’s
eyes were bloodshot. Defendant then taken to the hospital request police, for treatment. At the *3 samples by hospital blood were taken a lab technician analysis to determine blood-alcohol content. The performed by criminologist Oregon a for the State criminologist college graduate Police. is a with a degree year of bachelor science and has had one of technology training University medical at Oregon nationally Medical She School. is certified as a laboratory years medical technician. She worked two laboratory years in a medical and four as a criminolo- gist Oregon performed Police, has analyses. over 100 blood-alcohol There was no evi- possessed permit dence that she a from valid analyses. perform Health Division to blood-alcohol I relying Defendant, v. Schmerber 384 California, 757, US S Ct 1826, 16 86 L Ed 2d 908 contends taking sample that of the blood an constituted unreasonable taken search seizure because it was not
pursuant to a or valid consent as incident to an Although jurisdictions may adopted arrest. other have by defend Schmerber advanced ant, that merely establishing case as we read that to the subject is a a search blood-alcohol taking warrant- requirements governing same constitutional v. Murphy, any Cupp less as other search. searches Cf. (1973). 2d A 291, 2000, 36 L Ed 900 412 US 93 S Ct prob if there was permissible warrantless search is circumstances. exigent for a search and able cause that he had been drinking admission Defendant’s cause. There evidence of probable substantial because of a matter of law circumstances exigent in the dissipates that alcohol blood medical fact Osburn, v. 13 Or with the of time. State passage (1973). The trial court’s conclusion affirmed. See Ball that was valid must be search (1968). Gladden, II the blood test was Defendant next contends the test performing the person inadmissible because 487.815(1), did as required not have permit which provides: blood, person’s analyses "Chemical 487.545, saliva, shall be valid under ORS
urine or be * * * possessing individual valid performed by an by the Health perform analyses such issued permit to Division.”
However, 487.820 provides: law, provisions
"The 487.835, 487.815, except ORS 487.825 to (3) be shall not of ORS 487.545and subsection the introduction court to limit any construed civil relevant evidence competent, otherwise action, action any criminal proceedings suit or or or a similar other than a violation 482.540 to under ORS proceeding ordinance municipal *4 supplied.) (Emphasis 482.560.” is that The of the latter statute clear import of evi- introduction statutory concerning rules law, including in the consent dence contained while under 487.815, in driving apply only ORS (DUII) influence 487.540, and have proceedings, no application to this prosecution manslaughter. doubt cast only on that is the proposition ambigu- ous language "except ORS 487.545” contained in ORS Stover, and a footnote in State v. decided under the law existing to the prior enactment of ORS 487.820. is a statute any crimi applicable
nal or civil re proceeding establishing presumptions lating blood alcohol content and the of being proof under the influence of The stat intoxicating liquors. ute does not of purport govern admissibility 487.815(1) However, evidence. a rule prescribes which admissibility refers to ORS specifically 487.545. ORS 487.820 in turn states that the implied law, "except ORS 487.545” does not apply civil and criminal proceedings other than DUII. The only rational for this double explanation negative ORS 487.820 is that presumptions contained ORS 487.545 continue to in all civil and criminal apply but the proceedings, rule of admissibility and the reference therein to ORS 487.545 do not. Indeed, this is clear because ORS 487.820 specifically states that ORS 487.815 does not in criminal and apply civil other than DUII. proceedings
In v. Stover, held Court supra, Supreme the implied consent law rules of admissibility in a applied prosecution criminally negligent provides: 1OBS 487.545 "(1) action, proceeding At the suit or trial of civil or criminal arising person a motor vehicle out of the acts committed intoxicants, in the while under the if the amount of alcohol influence of percent by weight person’s alleged blood at the time is less than .10 blood, analysis person’s as shown alcohol saliva, may it be used with other urine or is indirect evidence that evidence, any, was then under if to determine whether or not he influence of intoxicants. "(2) person’s percent by weight in a Not less than .10 of alcohol intoxicating liquor. being blood constitutes under the influence "(3) upon by weight based in the blood shall be Percent of alcohol grams per of blood.” alcohol cubic centimeters one hundred 179]
[ *5 in that time of the trial under the law at the homicide the subse- acknowledged the court case. In its opinion 487.820, 483.648, now ORS enactment of ORS quent occur under result would and stated that an opposite However, at n 10. at 146-147 the new statute. Or in a footnote as follows: court went on to comment the Hi [*] [*]
"However, Fogle, v. 254 Or State (1969), where the state dealt with the situation this court used equipment the introduce evidence that failed to accuracy had tested for the breath test been to conduct by ORS required Health as by the State Board of 483.664(2)(c). aimed at Fogle was Thus our decision test of the competency and very the trustworthiness by the not be affected Fogle would ruling results. 'The provisions of ORS 483.648: passage court to limit by any law shall not be construed relevant evi- competent, the introduction of otherwise * *’ * added)” 11. at n 271 Or (Emphasis dence. 268, 459 In Fogle, was inadmis held that a blood-alcohol the court action because of homicide negligent sible in a 483.664(2), 487.815(2)(c).2 the Presumably now ORS entirety provides: 2ORS 487.815 in its "(1) blood, breath, analyses person’s urine or Chemical according saliva, performed shall be to be valid under ORS by by an individual approved Division and methods the Health by analyses permit perform issued possessing a such valid Health Division. "(2) The Health Division shall: "(a) performing anal- Approve techniques or methods of determining yses satisfactory content of alcoholic that are person’s blood. "(b) throughout Prepare the state for and conduct courses manuals analyses person’s training police of a officers in chemical to, include, approved methods limited but are not which courses shall and approved equipment and techniques analyses, use of of chemical together written examination with a of test results subjects. these "(c) by police certify accuracy equipment to be used Test and regular use of analyses person’s breath before for chemical of a officers of not more equipment periodically thereafter at intervals such by trained days, to be conducted certification than 60 such tests and technicians. 487.815(1) also Fogle necessarily rule applies However, comment which is at issue here. court’s that would not be affected Fogle passage was dictum to footnote status. In relegated decision, we absence of a definitive Court Supreme feel to hold overruled compelled Fogle testimony 487.820. The passage criminologist’s was certainly in this case the blood test concerning rule She common law of evidence. competent by any in administering had ample training experience *6 to the of admissi- get blood-alcohol tests over threshold The to be her was for bility. weight testimony afforded Furthermore, the 487.820 should be liberal- jury. to to its stated ly accomplish purpose, permit construed "the introduction of otherwise relevant competent, * * * A evidence in any civil or criminal action.” strict rule of construction could work harsh results. To illustrate, a defendant wish to introduce blood might in hematologist the most eminent performed by the world. test would be Presumably Fogle, under such if inadmissible the did have valid not physician from the Health permit legislature, Division. The to avoid such results. enacting intended considered a Presumably, legislature permit sys- tem necessary in DUII because of prosecutions It tremendous volume of cases. did not intend to system proceed- extend the to other criminal and civil are at ings where more interests usually substantial stake. m that on examination
Defendant testified on direct his of, to, he and the accident evening prior but "(d) qualifications competence to of individuals Ascertain the analyses more methods or with one or conduct such accordance techniques approved by the board. "(e) according qualifications. permits their Issue to individuals to satisfactory police only upon Permits shall be issued to officers prescribed training examination completion of course and written police permit equipment which the and the shall state methods qualified subject termination or use. shall be officer Permits at the Health Division.” revocation discretion gathering at which companion a social had attended cross-examination consumed. On beer had been prosecutor asked: party, marijuana being that at that smoked
"Q Was together?” get objected. it ruled that was court The trial
Defendant he question whether permissible about defendant purpose marijuana limited had smoked impeaching ability and re- to observe defendant’s colloquy following then took the accident. member place: prosecutor] [the Heintz, Mr. "MR. UPHAM you party being
marijuana that have that smoked at your direct examination? described there that substancebut "A I knowthat it was don’t marijuana. alleged there to be was a substance marijuana Alleged at the was smoked "Q to be party? "A Yes. nothing further. I have
"MR. UPHAM: nothing further. I have "MR. STRAND: step Okay. may down.” "THE You COURT: grounds on the mistrial moved for a Defendant then impeach questions purpose not to that the *7 ability remember, to but and to observe defendant’s guilty other than a crime that defendant was show the the charged. denied trial court The he was that which disregard jury to the motion, admonished but argues testimony. mistrial should that the Defendant disagree. initially granted. concedes Defendant We have been permitting in correct trial court was that the is questioning. mistrial motion for The the line of prosecutor the never asked the the fact that on based marijuana?” The you question: smoke "Did ultimate given the answers probably from prosecutor surmised be would questions the answer foundation to his opportunity to ask ample had no. Defendant arguendo, Assuming, question rebuttal. ultimate jury judge testimony error, instructed 55, 62, Jones, to it. See 279 disregard State v. Or 566 (1977). Affirmed.
THORNTON,
J., dissenting.
In
view the
of ORS
my
majority’s
487.815(1)
487.820
applied
to the
contrary
ORS
intent of the
with the
legislature
inconsistent
most recent
case
this
Supreme Court
discussing
point,
Stover,
State v.
The court held that violation of the consent provi- sions of the Law Implied Consent required suppression of the results, Annen, blood test State v. citing (1973) (also with dealing law). consent noted, The provisions court how- ever, that the enactment of ORS 487.820 following Annen case would the result change consent cases arising after statute. passage of that The court stated:
"In legislature 1973 the passed statute which requires suppression test results alcohol taken Law Implied violation Consent only in prosecution under the influence of 483.992(2) 487.540], intoxicating liquor, [now ORS ORS 483.648 provides: [now 487.820]
"ORS ORS " 'Implied consent not to limit law introduction certain evidence in proceedings. provisions of the law, [now 483.646 487.835], except 487.825 to (3) 487.805] [now subsection of ORS 483.634 487.545], [now ORS 483.642 not be con- shall by any strued court to limit the introduction of any otherwise civil competent, relevant evidence action, suit proceedings or or to criminal action
[183] (2) of subsection ORS other than a violation of municipal 487.540] or a similar [now under ORS 482.540 to proceeding ordinance in 482.560.’ under the influence of
"In cases other than
and seizure
intoxicating liquor constitutional
search
of
admissibility of the results
govern
standards will
chemical tests for alcohol. See Schmerber
California,
v.
(1966);
757,
1826,
v.
The court
then went on to say:
Annen,
"In State v.
203, 207,
Or App
Thus, Consent Implied evi- admissibility upon restriction additional as constitutional insofar cases non-DUII dence in however, does, It concerned.1 are standards compe- the standard remain under intoxication. evidence of scientific tency While dicta, the court’s it is in Stover is language consistent with the legislative history which indicates statute was drafted sole the rule in State purpose avoiding promulgated Annen, the introduction supra, thereby permitting of evidence of intoxication in non-DUII cases regard- Minutes, less of whether the defendant consented. *9 May Judiciary, April Committee on the 16 and Senate Judiciary Committee, 14, 1973; Minutes, June House 22, 1973.
Further, the in Stover is a reason- court’s statement statutory covering interpretation scheme able driving example, ORS while intoxicated. For 487.540(l)(a) provides:
"(1) driving A while person commits the offense if under the influence of intoxicants he drives vehicle while:
"(a) by weight He has .10 more of alcohol percent or analysis his blood as shown of his blood, urine or saliva made under ORS 487.805 to ” * * * 487.815 and 487.825 to 487.835 487.545(2) provides already that a noted, As percent person or level of .10 with a blood alcohol intoxicating liquor. greater It the influence of is under say 487.815, which that ORS would be redundant entirety, expressly applies its to ORS driving prosecutions for limited ORS 487.820 to intoxicants because under the influence of 487.540(l)(a) already provides limitations of ORS 487.815. only reasonable of ORS 487.815 legislature
is that the intended that it read be into and qualify applica- ORS 487.545 in all cases and that the provi- tion of ORS 487.820 be limited to the consent Implied sions of the Consent Law. There is no rational concluding legislature basis for could have competency intended that the and trustworthiness of prosecution evidence in a under the influ- strictly ence of intoxicants would be determined more manslaughter negligent than in a case of or homicide. very protected There are substantial interests to be prosecution manslaughter negligent homicide, or stringent requirements and the ORS 487.815 apply intended to to those cases well as DUII prosecutions. foregoing respectfully
For all of the I reasons dissent.