*1 16, 1986, Oregon Supreme from the Court December affirmed Submitted on remand petition May allowed March reconsideration denied for review June (303 534) OREGON, STATE OF Respondent, LANGEVIN, CRAIG MICHAEL Appellant. A36402)
(146,798; CA P2d *2 DeMuniz, Salem, Paul J. appeared appellant. With him were Robert Trethewy Garrett, Seideman, R. and Hemann, DeMuniz, P.C., Robertson & Salem. Fussner,
Jonathan H. Attorney General, Salem, Assistant appeared for respondent. With him were Dave Frohnmayer, Attorney General, Mountain, Jr., and E. James Solicitor Gen- eral, Salem. Buttler,
Before Presiding Judge, and Warren Rossman, Judges.
BUTTLER, P. J.
Rossman, J., specially concurring.
378
BUTTLER, P. J. from the to us on remand
This case comes light of it further in the to consider Court with instructions 196, 729 in State v. 302 Or recent decisions that court’s (1986), Westlund, 225, 729 P2d v. 302 Or and State P2d 524 541 his conviction for crimi- reversal of
Defendant seeks
contending
nally negligent
trial court erred
homicide,
that the
denying
suppress
taken from
of blood
his motion to
hospital,
body
and evi-
while he was unconscious
samples,
performed with the blood
derived from tests
dence
original opin-
obtaining
time.
our
without
ion,
a warrant
authority
to take
had
we held
487.835(2);
warrant,
blood without
(1979);
v. Cal-
P2d 385
v.
286 Or
State
deron,
App
297Or 272
P2d
rev den
interpreted
v.
in State
under the
Lowry,
Constitution
and State
Or
On single investigated Oregon traffic a car fatal State Police the approximately 2:35 a.m. on at accident, which had occurred and driver; he was was the unconscious that date. Defendant steering seat; had in the driver’s the wheel seated behind one mobile was passenger The auto- him, died at the scene. who had extensively; portion
damaged its frame had to a of passenger. There the dead to extricate be removed in order by auto- marks; left defendant’s the tire tracks were no skid approximately straight feet into a the road led off mobile roadway point at a had left the tree, The car which it struck. gradual of curve, was no evidence and there where there was attempt or swerve. to brake defen- of alcohol on the odor officers noticed Both defendant believed that breath, and both of them dant’s by vio- He acted had consumed. alcohol he affected the been help trying lently to who were and others the officers toward felony him. Both officers believed that a and that had been committed found in evidence that crime would be experience training blood. Both of them from their and knew dissipate alcohol that was in defendant’s blood would rapidly and that it of his to obtain possible preserve blood as order the soon to evidence. carrying Milton followedthe ambulance hospital, arriving approximately At the there 3:45 a.m. hospital, smelling in addition defen- the odor alcohol on eyes extremely breath, dant’s Milton noticed that were attempted bloodshot. He to communicate with unresponsive. Accordingly, he was unconscious and Milton requested hospital personnel to draw blood from defendant. present He was and observed a on technician draw blood two occasions, the first at 4 a.m. and the second at a.m. In 5:12 self-sealing instance, each ately he seized the vial of blood immedi- placed after it had been drawn. Milton had not defen- although dant drawn, under arrest before the blood was court found that he had examined in the to do so. cause The blood was Oregon Laboratory Crime State between Jan- uary January 4 and search No warrant was obtained before the blood was drawn or before the of the and the vials analysis scientific of the blood.
We are satisfied that the officers had
cause
drinking
to believe that defendant had been
an alcoholic bev
erage
system
causing
alcohol in his
a was factor in
appeared
high
him to drive
off
road at what
to them
to be
speed,
fog, causing
damage
tree,
him to hit a
his car exten
sively
passenger.
and kill his
Because of
evanescent nature
recognized,
alcohol in the
it has been
as a
matter
law, that
dictates the
of blood sam
ples
dissipates.
supra;
before the alcohol
supra.
proba
Calderon,
Defendant, however, contends that
exigent
justify
ble cause and
circumstances do
the war
rantless seizure of his blood. That
has not been
Oregon
applying
decided
courts
Constitu
tion,
Heintz
such a
as an
sanctions
search
incident
*4
relying
arrest,
a lawful
757,
California,
on Schmerber v.
384US
appears
1826,
86 S Ct
At time there was no when drawing person’s of blood without a authorizing statute enacted,2 then, which consent. ORS 487.835 was Since pertinent part: provided, preclude the intended to
“Nothing ORS 487.805 is A. test in this section. of a chemical described administration police may test of the blood to deter- officer obtain a chemical any person’s or of blood a test mine the amount alcohol urine, both, presence person’s or or to determine provided in the person as controlled substance a following: officer,
“(1) If, requested by police when expressly a test. consents such section,
“(2) (1) this Notwithstanding subsection if: person without the consent from a “(a) has cause to believe officer 133.005(1) provides: “ place person or to actual or constructive restraint ‘Arrest’ means custody purpose charging an offense. for the take a into ‘stop’ 131.625 is not an arrest.” A under ORS 131.605 to authorized searched, he was appears because defendant The court to have concluded constructively. arrested Laws Laws ORS 487.835 was enacted ch ch 16, § § effective January Or Laws 1, 1986, ch and reenacted 822, 7; § as ORS repealed 813.140, by Or
381 under the influence of intoxi- person driving while in the evidence of the offense will be found cants and that urine; person’s blood or “(b) is unconscious or otherwise a condi- expressly consenting rendering person incapable to tion the test or tests requested.” that the be under require the statute does not
Although consent, arrest at the time when blood is taken without his the statute is unconstitu- defendant does not contend contend, however, tional; instead, He ignores it. does not, Constitution, take a police may under the without his of whether he is regardless consent concluded, must, Because we have as we arrest. defendant was under arrest at the time when his blood Heintz, drawn, supra, we need not decide whether permissible search and seizure would be in the absence of an entirely arrest. In the court relied on Schmerber v. analysis It did in a California, supra. engage separate I, 9, authority recognized under Article section it its adopt a different rule under the Oregon Constitution Later, Caraher, 741, declined to do so. in State v. 653 (1982), P2d 942 Oregon’s the court declared constitutional independence, analysis I, on an of Article section embarking separate employed from that under the Fourth Amendment. not, contends, Although Caraher does as defendant render alone, non-authority Heintz a for that reason substance validity may the decision in that case cast doubt on the of the search incident to his arrest.
In State v. the court recognized only rejected Caraher not the federal rule for searches incident Robinson, to arrest announced in United States v. 414 US Florida, L Ed 2d S Ct and Gustafson permit 414 US 94 S Ct L Ed 2d 456 which full searches of the incident lawful custodial arrest, I, adopted a different under Article 9. 302 rule section Caraher, Or at evidence 201. Under search must be limited to of the crime for which the arrest was made and must be close arrest, space intensity in time and to the and the of the search and what known of must be commensurate with the crime the criminal. here, intensity it is problem
If there is a
the search. As the court stated in
“the fact of arrest
grant
unqualified
does not
right
to search an arrestee’s
person for crime
However,
evidence.”
Heintz decided, legislature whether the intended to limit Heintz to cases where the defendant expressly consents to the Heintz does not taking of his blood or is unconscious. say that necessary, either condition is appears that incapable there was consenting. Neither is it clear whether the legislature impliedly adopted the doctrine of taking regardless whether the person perceive was under arrest. We can of no basis for concluding practical necessity there is if the Finally, consents but none if he refuses. if consent is keystone intrusion, for the intensive can justify how we taking blood from an unconscious who has con- Certainly, intense, sented? the intrusion is no less and it is equally reasonably certain we presume cannot unconscious would have consented if he were con- scious.
Notwithstanding questions, the unanswered we interpret to hold that, if the defendant is under arrest consumption for a crime related to the of alcohol and if the have cause to believe that the defendant’s crime, they blood will contain evidence of that may, constitutions, if samples both the state and federal take blood so, expressly doing the defendant unable to consent to their in Caraher practical necessity. Nothing changes because of samples Accordingly, that conclusion. of two blood from defendant and under arrest did while was unconscious supra, I, 9, State v. or not violate either Article section supra. v. California, the Fourth Amendment. Schmerber remaining The is whether the warrantless testing samples passage of at of defendant’s blood after the days permissible Oregon least four under the Constitu original opinion, citing not, tion. In our we held that it was Lowry, supra, opinion Westlund, in State v. and our supra. opinion Westlund, reversed Court our analy supra, State v. sis contained in in which we had followedthe Lowry,citing supra. Owens, holding court, after that the warrantless seizure of a trans parent containing powder, vial white which the officer substance, cause to believe was a controlled valid, went on to consider whether of the con tainer is a “search” or “seizure” under the Constitu tion. State v. 302 Or at The court said transparent containers announce their if contents same as “plain their contents have been discovered view.” There cog fore, held, “search,” the court there was no no privacy transparent nizable interest inheres the contents of opened containers, and so could be and their contents seized and tested without a warrant. proba-
Here, we have concluded that the officers had ble cause to believe that defendant’s blood would contain evi- consumption dence of alcohol and that Milton was authorized body to seize blood from defendant’s unconscious part “plain of a search incident to his lawful arrest. The view” *7 analysis applied readily adapt in Owensdoes not itself to these belong they facts, defendant, because the vials did were possession put never in his and he did not in his blood them. Accordingly, it matters not whether the blood was contained transparent vials or whether the vials announced otherwise vials, their contents. The officer knew what was present he had directed the of defendant’s possession when it was done and took after of each vial blood drawn.
Accordingly,
presented relating
no
to the
is
container;
aof closed
there was no search involved in
opening the vials and there was no additional seizure of the
testing
already
BAC,
blood in
its
because the
had been
testing
circumstances,
seized.
Under those
was not
presence
search,
alcohol,
because it was done to confirm the
present.
which
State v.
cause to believe was
Affirmed.
specially concurring.
ROSSMAN, J.,
Although agree
majority’s
I
with the
discussion of
police lawfully
i.e.,
issue,
first
whether the
drew blood from the
compelled
separately
unconscious
the lawfulness of
I feel
to write
on
testing
the blood for alcohol. This case was
light
remanded for
reconsideration
the
I
of State v.
(1986).
302 Or
Owens in
729 P2d
read
believe that we must
conjunction
companion cases,
with its
which were
day:
decided the same
State v.
302 Or
729 P2d
Forseth,
302 Or