Lead Opinion
OPINION
Robert Eugene Shepherd, appellee, was tried by a judge for the crime of Manslaughter in the First Degree, in violation of 21 O.S.1981, § 711(1), in Case No. CRF-87-6060, in the District Court of Oklahoma County. The trial court sustained the ap-pellee’s motion to suppress bloоd test results and also sustained his demurrer to the evidence. The State now appeals this decision on reserved questions of law pursuant to 22 O.S.1981, § 1053.
On April 27,1987, the appellee was allegedly driving an automobile which was involved in a fatality accident. The appellee was taken to the hospital where he was in a semi-conscious state when approached by the investigating officer. Upon detecting a strong odor of alcohol about the appellee, the officer instructed a nurse to draw blood from him for a blood alcohol test. The State stipulated that this blood was taken without the consent of the appellee and that no evidence indicated that he was given the opportunity to revoke any implied consent when he regained consciousness.
The first reserved question of law that we will address is how and when an officer may effectuate an arrest of an unconscious individual so that his blood сan be taken in accordance with the mandates of the implied consent statutes 47 O.S.1981, §§ 751-753. In order to request a driver to submit to a blood alcohol test, it is well established that an officer must first place the driver under arrest. See Smith v. State ex rel. Dept. of Public Safety,
No exception to this general rule has been created for cases in which an individual is unconscious when he is to be placed under arrest. We agree with the State that it would obviously be futile to verbally inform an unconscious person that he is
Disposition of the State’s other reserved questions of law requires us first to deal with the issue of whether 47 O.S.Supp. 1988, § 753 is constitutional. It has long been held that warrantless searches and seizures are per se unreasonable under the Fourth Amendment. Katz v. United States,
Title 47 O.S.Supp.1988, § 753 allows an officer to take blood against the objections of a conscious person whom he has placed under arrest when, “the investigating officer has probable cause to believe that the person under arrest, while intoxicated, has operated his motor vehicle in such a manner as to have caused the death or serious physical injury to any other person or persons.” This statutory provision does not require the constitutional mandates set forth in Schmerber. However, although section 753 is not constitutionally adequate on its face, it may be applied in a way that satisfies constitutional requirements if the investigating officer only instructs that blood be drawn from the driver when the officer reasonably believes that under the circumstances, any delay necessary to secure a warrant may result in the loss of evidence. Thus, the determination of whether section 753 has been applied in a constitutionally sound manner must be made on a сase by case basis.
Under 47 O.S.Supp.1988, § 753, a conscious driver may be required to submit to a blood test under certain circumstances. The State asks this Court whether an unconscious driver in similar circumstances should be denied the right to withdraw consent to a blood test upon regaining consciousness. In Sartin v. State,
The State further asks whether the blood test results could have been admitted under the exigent circumstances exception to the warrant requirеment as set forth in Schmerber. The driver in Schmerber was arrested without a warrant as the officer had probable cause to believe that he was driving under the influence. The Supreme Court found that under the facts of the case, where time had been taken to bring the аccused to a hospital and investigate the scene of the accident, there was not sufficient time to seek out a magistrate to secure a warrant. The delay necessary to obtain a warrant may have resulted in the destruction of evidence. Thus, the attempt
Finally, the State has posed several questions relating to the weight of rulings made by district court judges. However, we find that these questions were not properly reserved for appеal because they were not reserved by the State at trial. Instead, they were raised by the district judge after the State had rested its case. Title 22 O.S.1981, § 1053 clearly limits appeals upon reserved questions of law to those “reserved by the state or a municipality.” This does not include questions asked by a district judge as was the situation in this case. Because the State’s right to appeal rests on statutory authority that cannot be enlarged by construction, we will not address these questions. See State v. Humphrey,
RESERVED QUESTIONS OF LAW ANSWERED.
Concurrence Opinion
concurring in part/dissenting in part.
I respectfully dissent to the holding of the court in this case as it relates to the finding that there was not a proper arrest and, therefore, the blood sample taken was inadmissible. I concur with the court’s findings as it relates to the last part of the opinion dealing with certain questions that could not be brought before this Court due to the fact that several questions were not properly reserved pursuant to the provisions of 22 O.S.1981, § 1053.
It seems odd that you can take blood from someone who was involved in an accident that caused a fatality where the person giving the blood was conscious, but you could not take blood from the person that was comatose. This, quite frankly, does not make sense.
The U.S. Supreme Court has held that it is permissible to draw blood from an unconscious driver that is believed to be under the influence of alcohol because of exigent circumstances. Breithaupt v. Abram,
Therefore, the only true question in this case is what doеs or does not constitute an arrest of an unconscious person. Again, to say that the arrest can only occur as it relates to the unconscious person when we have some form of restraint does not make sense. How do you tell a passed-out drunk that he or she is under arrest.
The court suggests that one way to accomplish an arrest would be to place a police officer or guard outside an individual’s room in the hospital, thereby restraining or сonstraining the accused. If there ever was a case for “exigent circumstances” the unconscious drunken driver would fit the mold. Obviously, with the passage of time the blood alcohol content is lowered. You do not have time to obtаin a search warrant or wait for someone to be revived to ask for consent. Therefore, a speedy test is required.
It is clear under the law that if you can take the blood from a conscious person that refuses to give such blood, why should you not be able to take blood from the unconscious or nonconsenting individual. With every breath that the party takes, the blood content goes away. There is no time to wait for search warrants, etc.
The problem thеn, as the court has addressed, is what is an arrest of an unconscious person. Without making a definite bright-line rule, it would seem that any form of restraint or constraint would be appropriate, and the trial judge would have to determine under the tоtality of the circumstances whether the party was under arrest or not. Such factors could be notice
As noted above, the U.S. Supreme Court has basically decided two cases in this area, the one the court cites as Schmerber, but one more direct in point case is Breithaupt. Schmerber would apply where we have the conscious driver; Breithaupt would apply to the unconscious driver. It is my opinion that this Court has answered the arrest portion of the case when we have effectively held that arrest occurs when ones liberty of movement is interrupted. Castellano v. State,
Dissenting Opinion
dissenting.
I join in the dissent of Judge Johnson. In addition, this Court has already adopted guidelines for the trial courts to utilize in determining the admissibility of this type of evidence. State v. Wood,