*1 rehearing petition August 27, Argued July 23, for affirmed pending 3, 1973, petition review October v. JOHN OREGON, Respondent, OF STATE STOVER, (No. 5277) Appellant. FRANKLIN P2d 537 *2 argued D. Yolcom, Donald Pendleton, the cause and appellant. filed the brief for Denney, Attorney Thomas E. Assistant General, argued respondent. Trim Salem, cause for With on Attorney the brief were Johnson, Lee General, John Osburn, W. Solicitor General, Salem. Judge, Before Chief Langtry Schwab, Judges.
Thornton, SCHWAB, C.J. driving
Defendant, while about 43 miles from bridge ran into a Pendleton, abutment. Defendant and passengers, McMurtry all of his i.e., Mrs. and three of Patrick injured. children, of the One children, were her day aged accident. McMurtry, of the died the was days defendant accident fatal after the Pour per- than more .15 with a citation issued under ORS misdemeanor alcohol, a cent blood defendant later, months two more than A little negligent criminally charged homicide, attorney then felony district 163.145. The under ORS sought of the misdemeanor dismissal and obtained a pending charge court. in district was still charge, negligent Mrs. homicide on the At McMurtry had consumed about testified that day six-packs of the ac- of beer four or five opinion defendant was under her and that cident, of intoxicants. There was also evidence sample taken from defendant at the hos- that a blood pital hours after the two to three accident con- about percent tained alcohol. .16 *3 appeals. and convicted, was He con- (1) denying plea erred in: the trial court his
tends
negligent
homicide
constituted
double
charge arising
jeopardy
the misdemeanor
since
previously
(2)
had
incident
been
the same
dismissed;
privilege objections
overruling
marital
his
testi-
McMurtry,
mony
who he claims is
of Mrs.
his common
(3) permitting
of Idaho;
laws
under the
law wife
test results to be
alcohol
introduced
over
objections
on claims that the blood
based
tested
complied
manner that
in a
not obtained
was
with seq.
Law, ORS
et
felony
separate
charges
misdemeanor
against
brought
defendant in this case were for the
three-part
under the
offense
test of
same
State v.
(1972).
Brown,
P2d
442, 448,
See,
262 Or
Leverich,
State v.
Mrs. together intermittently had lived Idaho, she child defendant in and that Idaho, she at occasionally least used name Mrs. Stover. While testimony equivocal, capable her is somewhat it is interpretation McMurtry the regarded that defendant and Mrs. living
themselves as husband and wife while testify Defendant did not Idaho. about his relation McMurtry. ship Assuming deciding with Mrs. but that this was evidence sufficient to establish a common marriage McMurtry law Idaho law, Mrs. could testify in nevertheless this case because of OES 139.- which states: “* * * personal [I]n all cases of upon violence [spouse] by personal either the other or of violence against any unlawful act other committed minor parties, of either or injured child both of the party, wife, husband or shall testify he allowed to * * against the other Finally, hold the tested for alcohol obtained in content with Law. Investigating officers the accident scene ob- served a number beer cans in defendant’s car and odor of beer on detected the defendant’s breath. While *4 hospital was en route defendant to in an ambulance, requested radioed the officers ahead and hospital per- to test of defendant’s sonnel to obtain at the was conseions Defendant content. for alcohol go- he hospital. told A technician lab proceeded sample, do so. ing and to take a only testimony testify; about did taking from the lab came of the blood stated: technician, who you Okay. [By prosecutor] Did tell Mr. “Q going you were take a blood fact Stover
sample from him? IYes, “A did. you request permission all his Did
“Q just him? tell just him.
“A No. told We [*] [*] # % say Okay. anything? Did Mr. Stover
“Q “A Yes! say? did
“Q “A He he What says, me a break.’ ‘Give say anything Did he else? “Q “A No.
[*] [By counsel] did “Q defense What this [i.e., you? statement] indicate to defendant’s probably “A That he knew what we were tak- blood for. you indicate that he didn’t Would it want “Q blood? some take Probably “A so. you request any permis- didn’t “Q And more you just him, then, went ahead sion sample? took the correct.” “A That is provides:
OBS “Nothing in 483.634 is intended OBS to, lieu request for administration of of a breath test, *5 564
preclude of of chemical test the administration a any person if, when urine or saliva blood, the expressly police person requested the officer, a consents to such a test.” Greenough, P2d 491 7 Or In State v. (1972), (1971), Sup the we held review Ct taking prohibit a did not blood Law person when the was unconscious who police he had driv- cause to believe been just before the accident that under reaching In that conclusion rendered him unconscious. conjunction interpreted ORS 483.636 rest of Law concluded “expressly phrase consents” in ORS 483.636 means, expressly Annen, refuses.” In v. “unless State effect, App 203, P2d Ct review denied prohibit (1973), did we held 483.636 blood that ORS being test results introduced evidence when alcohol sample tested had taken over a driver’s the blood been express refusal. lengthy argu
In this the trial heard ease, court concerning Greenough the effect of ments Annen. foregoing testimony, Applying those cases to the to trial court was entitled conclude that defendant did taking unequivocally refuse submit of a testimony may sample. "While indicate de fendant was to submit to a blood test, reluctant Annen only express prohibits an holds refusal submit that proceeding with test. Thus, a blood this case is dis tinguishable from Annen. complains also that the blood question in the test in used was not obtained 'in provides: 483.640, with ORS which conducting a chemical only
“In test of the blood, acting person duly physician or a licensed may withdraw blood or control his direction pierce tissues.” human purpose is to insure OES obvious medically only persons trained and com who are testing. ‹
petent for chemical When will withdraw blood samples minimizes are OES 483.640 taken, question, impact procedure on the driver of that procedures used will be maximizes chances that way sample in such a do not contaminate *6 subsequent of it for alcohol content. as to affect test a legislative purposes, we conclude Given these by person requirement withdrawn “a the blood be that * * * acting [the] or control” of a direction only physician licensed means that blood be withdrawn medically by accepted manner someone who is a ordinarily by supervised physicians; statute does the literally physician physically not mean that a must be present the is withdrawn. This is when intent clearly statutory expressed phrase most in the “direc (Emphasis supplied.) tion or control.” In this was taken from case, hospital, registered in a a medical tech nologist who had withdrawn blood hundreds of times hospital testified that his and who work before, ‹ concurring opinion Implied that contends Consent part of, applicable Law, is a is not which ORS 483.640 in this case driving was not arrested for because defendant under the in intoxicating liquor before his blood fluence of was withdrawn. legislature analysis to the This arrested attributes intent that drivers driving liquor enjoy under the influence for of should protection 483.640, arrested, of ORS but that drivers not or ar something driving other than for under the rested liquor, influence of enjoy protection of should not ORS 483.640. This would statutory that there would be lead to the conclusion a limit on who pierce could “withdraw human tissues” of [from] dri- suf- This establishes the doctors there.” done “for
is provisions of ORS 483.640. with the ficient Affirmed. concurring. specially J.,
THORNTON, for the reasons stated the result, but I concur dissenting opinion my Annen, v. State (1973), I Ct review 1400, 504 P2d 203, 209, majority opinion agree portion of the do not applies Implied Law that the Consent which concludes Implied Law of this case. The Consent under the facts *“* * only person applies for driv- under arrest the influence of intoxi- motor vehicle while under * * cating liquor as Inasmuch ORS 483.634 placed under arrest for defendant was not intoxicating prior liquor while under the chemical test, withdrawal of his blood apply. provisions of the Law do authority Breithaupt I would affirm 1 L 2d Ed Abram, 408, v. 352 US 77 S Ct (1957), California, v. 384 US Schmerber S (1966), L Ed 2d 908 rather than the 1826, 16 Ct ample There was evidence sustain the Law. investigating judge’s finding officer *7 require cause to to submit to a blood alcohol test. liquor, under the influence of
-vers arrested ior but there statutory limit could would or no on who “withdraw be blood [from] pierce of other drivers. human tissues” perceive any upon legis- rational basis which Unable possibly disagree results, could have intended such lature inapplicable Law is in this case.