Guest v. State, F-2001-260.
Decision Date | 05 February 2002 |
Docket Number | No. F-2001-260.,F-2001-260. |
Citation | 2002 OK CR 5,42 P.3d 289 |
Parties | Christopher David GUEST, Appellant, v. STATE of Oklahoma, Appellee. |
Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Timothy Daniel, Drumright, OK, Attorney for Appellant.
Michael S. Loeffler, Sapulpa, OK, Attorney for the State.
Timothy Wallen Daniel, Drumright, OK, Attorney for Appellant.
W.A. Drew Edmondson, Attorney General of Oklahoma, Kellye Bates, Assistant Attorney General, Oklahoma City, OK, Attorneys for Appellee.
SUMMARY OPINION
¶ 1 Appellant, Christopher David Guest, was convicted of two counts of First Degree Manslaughter in the District Court of Creek County, in Case Number CF-99-55-D, following a jury trial before the Honorable Joe Sam Vassar. Following its return of a guilty verdict, the jury recommended that Appellant be sentenced to serve a term of ten years imprisonment on each count. The trial court sentenced Appellant accordingly, ordering the sentences be served consecutively.
¶ 2 After thorough consideration of the entire record before us on appeal, including the original record, transcripts, and briefs of the parties, we affirm. In reaching our decision, we considered the following propositions of error and determined neither reversal nor modification to be required under the law and the evidence:
cert. denied, ___ U.S. ___, 122 S.Ct. 483, 151 L.Ed.2d 396.
¶ 4 The issue raised in Proposition I requires more discussion. Appellant complains in his first proposition that because he was not under arrest at the time that his blood was withdrawn and he had not consented to the taking of his blood for testing, the blood was taken in violation of Oklahoma statutes and his Fourth Amendment right to be free from unreasonable searches and seizures. Appellant argues specifically that Oklahoma statutes require a person be placed under arrest before his or her blood can be taken for testing.
¶ 5 There are two statutes that address circumstances under which persons driving upon public roads and highways in Oklahoma may be required to submit to blood and breath tests to check for intoxicating substances. Title 47 O.S.Supp.1998, § 751(A) provides that any person is deemed to have given consent to blood or breath tests if such person is "arrested for any offense arising out of acts alleged to have been committed while the person was operating or in actual physical control of a motor vehicle upon the public roads, highways, streets, turnpikes or other public place while under the influence of alcohol or other intoxicating substance, or the combined influence of alcohol and any other intoxicating substance." More narrowly drafted, 47 O.S.Supp.1998, § 10-104(B) provides that, "[a]ny driver of any vehicle involved in an accident who could be cited for any traffic offense where said accident resulted in the immediate death of any person shall submit to drug and alcohol testing as soon as practicable after such accident occurs."
¶ 6 This Court and the Oklahoma Supreme Court have held that the specific language of section 751 requires an officer to place a driver under arrest before requesting him or her to submit to a blood alcohol test. See State v. Shepherd, 1992 OK CR 69, ¶ 3, 840 P.2d 644, 645
. See also Smith v. State ex rel. Dept. of Public Safety, 1984 OK CR 16, ¶ 3, 680 P.2d 365. There is no such language found in section 10-104(B). However, this section does state that the traffic violation shall constitute probable cause for purposes of 47 O.S.Supp.1998, § 752 and that the procedures found in section 752 shall be followed. Appellant argues that section 752(B) requires a person be placed under arrest before their blood is withdrawn.
¶ 7 A full reading of section 752(B) does not support Appellant's argument. Section 752 generally addresses the administration of tests, authorization, liability for performance of tests, and reports. Section 752(B) specifically provides:
(Emphasis added). In short, this section does not require that a person be placed under arrest before his or her blood can be withdrawn for drug or alcohol testing. Rather, it simply sets forth four circumstances under which the persons who withdraw the blood cannot be held civilly liable for the withdrawal of blood.
¶ 8 Oklahoma statutes 47 O.S.Supp.1998, § 10-104(B) and 47 O.S.Supp.1998, § 751 provide the circumstances under which blood can be withdrawn from a driver in Oklahoma. Section 10-104(B) is applied to all drivers involved in fatality accidents and section 751 applies to all other offenses arising out of acts committed while the driver was operating a vehicle on public roads. In the present case, under section 10-104(B), it is enough that Appellant was the driver of a vehicle involved in an accident, that he could be cited for a traffic offense and that the accident resulted in the immediate death of a person. Appellant's blood was neither withdrawn in violation of Oklahoma statutes nor in violation of his constitutional rights under the Fourth Amendment. This proposition warrants no relief.
¶ 1 I respectfully dissent. I agree with the majority that through 47 Okl. St. Ann. § 10-104(B), Oklahoma law mandates that a driver who could be cited for any fatality-related traffic offense submit to drug and alcohol testing as soon as practicable after the accident. I also agree that under § 10-104(B), a traffic violation establishes probable cause for the purpose of testing, and that "the procedures found in § 752 shall be followed" to determine the presence of alcohol or controlled dangerous substances within the driver's blood system.1 I part company with the majority, however, when it determines that the irrefutably directive language of § 10-104 highlighted above does not really require compliance with the blood withdrawal procedures listed in § 752, and that § 752 is merely a statement of how blood withdrawers can avoid civil liability.
¶ 3 The last sentence of § 752(B)(4) limits individual and institutional civil liability for an action premised on the patient's alleged lack of consent to the blood withdrawal under one circumstance: where the withdrawal was premised upon a written judicial order. Seeking to uphold...
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