State v. Annen

• Decision Date: 12 January 1973
• Citation: 504 P.2d 1400,96 Adv.Sh. 431,12 Or.App. 203
• Parties: STATE of Oregon, Respondent, v. Alcuin Alvin ANNEN, Appellant.
• Court: Oregon Court of Appeals

Page 1400

504 P.2d 1400

12 Or.App. 203

STATE of Oregon, Respondent, v. Alcuin Alvin ANNEN, Appellant.

Court of Appeals of Oregon.

Argued and Submitted Nov. 27, 1972.

Decided Jan. 12, 1973.

Bruce W. Williams, Salem, argued the cause and filed the briefs for appellant.

James A. Hearn, Deputy Dist. Atty., Salem, argued the cause for respondent. With him on the brief was Gary D. Gortmaker, Dist. Atty., Salem.

Before SCHWAB, C.J., and LANGTRY and THORNTON, JJ.

SCHWAB, Chief Judge.

This appeal presents the question of whether it was error to admit into evidence in a negligent homicide trial the results of a blood alcohol test showing an alcohol content of .24 per cent ¹ when the blood sample which was tested was taken from the defendant after the defendant had expressly refused the state permission to take a blood sample from him. Under the terms of the Implied Consent Law, ORS 483.634 et seq, as interpreted by State v. Fogle, 254 Or. 268, 459 P.2d 873 (1969), the results of the test should not have been received in evidence.

The night of September 14, 1971, defendant was driving a pickup truck north on US 99E. Near Gervais defendant's truck and an automobile collided head-on. The driver of the automobile later died from injuries received in the accident.

One eyewitness testified that the collision occurred in the southbound lane, i.e., that defendant was over the center line. Pictures of the damage to the vehicles and of tire marks, etc., on the highway were consistent with the state's theory that defendant had been driving in the wrong, i.e., southbound, lane, and was turning back toward his lane at the time of the collision. Six witnesses testified that they were in defendant's presence in the hours following the accident; each testified that he had formed the opinion defendant was under the influence of intoxicating liquor.

Defendant was taken by ambulance to a hospital. A state policeman and deputy district attorney investigating the accident came to the hospital and asked defendant's permission to take a blood sample for purposes of a chemical sobriety test. Defendant refused. Neither party contends that the defendant was so intoxicated that he could not understand the request. In spite of his refusal and at least verbal resistance, a blood sample was withdrawn from defendant's arm. ²

No constitutional issue is presented. Nothing in the United States or Oregon constitutions would prohibit a policeman who has probable cause to believe a person was driving under the influence of alcohol from requiring that person to submit to a chemical test of his blood, breath, saliva, urine, etc. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); Heer v. Dept. of Motor Vehicles, 252 Or. 455, 450 P.2d 533 (1969); State v. Cram, 176 Or. 577, 160 P.2d 283, 164 A.L.R. 952 (1945). As in other situations where the police have probable cause to make a search, the driver's consent or lack thereof would be irrelevant. Schmerber v. California, supra.

However, in adopting the Implied Consent Law, the legislative assembly did not fix the statutory limits at the constitutionally permissible limits. Instead, it is apparent that in some instances drivers have a statutory right under the Implied Consent Law to refuse to submit to any and all chemical sobriety tests.

The material provisions of the Implied Consent Law provide:

'Any person who operates a motor vehicle upon the highways of this state shall be deemed to have given consent, subject to ORS 483.634 to 483.646, to a chemical test of his breath for the purpose of determining the alcoholic content of his blood if arrested for driving a motor vehicle while under the influence of intoxicating liquor in violation of subsection (2) of ORS 483.992 or of a municipal ordinance * * *.' ORS 483.634(1).

'If a person under arrest for driving a motor vehicle while under the influence of intoxicating liquor in violation of subsection (2) of ORS 483.992 or of a municipal ordinance, Refuses the request of a police officer to submit to a chemical test of his breath as provided in subsection (1) of this section * * * No test shall be given, but the police officer shall prepare a sworn report of the refusal and cause it to be delivered to the division * * *.' ORS 483.634(2). (Emphasis supplied.)

'If a person under arrest Refuses to submit to a chemical test of his breath under the provisions of subsection (2) of this section or Refuses to consent to chemical tests as provided by ORS 483.636, Evidence of his refusal shall not be admissible in any civil or criminal action, suit or proceeding arising out of acts alleged to have been committed while the person was driving a motor vehicle on the highways while under the influence of intoxicating liquor.' ORS 483.634(3). (Emphasis supplied.)

'Nothing in ORS 483.634 is intended to, in lieu of a request for and administration of a breath test, preclude the administration of a chemical test of the blood, urine or saliva of any person If, when requested by a police officer, the person expressly consents to such a test.' ORS 483.636. (Emphasis supplied.)

These sections explicitly state that arrested drivers can 'refuse to submit,' ORS 483.634(2) and 483.634(3), to chemical breath tests, and arrested drivers must 'expressly consent,' ORS 483.636, to other chemical tests. '* * * (T)he statute recognizes that a person may refuse to submit to the test * * *,' State v. Fogle, 254 Or. 268, 270, 459 P.2d 873, 874 (1969). See also, Thorp v. Dept. of Motor Vehicles, 4 Or.App. 552, 480 P.2d 716 (1971); State v. Greenough, 7 Or.App. 520, 491 P.2d 630 (1971), Sup.Ct. review denied (1972).

The state argues that the statutory right of refusal is limited to

'* * * a person under arrest for driving a motor vehicle while under the influence of intoxicating liquor in violation of subsection (2) of ORS 483.992 or of a municipal ordinance * * *.' ORS 483.634(2),

and points out that here defendant was arrested, just before the blood sample was taken, for reckless driving.

The legislature may limit the statutory right to refuse to take a Breath test to situations when a driver is arrested for driving under the influence of intoxicating liquor. Under ORS 483.636, however, a Blood test cannot be compelled over the driver's refusal; this section is not qualified in any way by making it dependent upon the reason for the driver's arrest.

Moreover, the statutory language upon which the state relies, ORS 483.634(2), must be read in conjunction with ORS 483.634(3) which provides that evidence of a driver's refusal to submit to any kind of chemical test

'* * * shall not be admissible in any civil or criminal action, suit or proceeding arising out of acts alleged to have been committed while the person was driving a motor vehicle on the highways while under the influence of intoxicating liquor.'

If the statutory right to refuse to take a blood test were limited to persons arrested for driving under the influence, the quoted part of ORS 483.634(3) would be meaningless. We do not believe the legislature intended blood test results obtained without a driver's consent to be admissible any time the driver was arrested for something other than driving while under the influence of liquor, while at the same time providing the act of refusing to consent was inadmissible 'in any * * * criminal action.'

After police interviewed witnesses at the accident scene they had probable cause to arrest defendant for driving under the influence, or reckless driving or possibly any number of other traffic violations. It could produce absurd results if the standards of the Implied Consent Law did or did not apply depending on the words the officer selected in making an arrest or issuing a citation. Statutes should be interpreted to avoid absurd results. See, Nanny v. Oregon Liquor Control Comm., 179 Or. 274, 171 P.2d 360 (1946).

Our conclusion is compelled by State v. Fogle, supra. Fogle, like this case, involved a negligent homicide charge. The Supreme Court held evidence of chemical breath test results inadmissible on the grounds of noncompliance with the Implied Consent Law. While the Fogle opinion does not mention the charge on which Fogle was originally arrested, the failure to do so indicates the Supreme Court believed that to be irrelevant. ³

The Implied Consent Law permits an arrested driver to refuse to submit to chemical sobriety tests. This statutory right was available to defendant in this case. The blood sample should not have been taken without defendant's consent. Its use at trial was error.

The defendant makes two other assignments of error. They do not warrant discussion beyond noting that State v. Montieth, 247 Or. 43, 417 P.2d 1012 (1966), dismissed 386 U.S. 780, 87 S.Ct. 1496, 18 L.Ed.2d 526 (1967), disposes of both contrary to his contentions.

Reversed and remanded.

THORNTON, Judge (dissenting).

I am unable to agree with the reasoning and result reached in the prevailing opinion and therefore respectfully dissent for the following reasons:

The Oregon version of the model Implied Consent Law provides that every motorist, by driving on the highways of this state, impliedly consents to take a breath test '* * * If arrested for driving a motor vehicle while under the influence of intoxicating liquor in violation of subsection (2) of ORS 483.992 or of a municipal ordinance * * *.' ORS 483.634(1). (Emphasis supplied.)

In the case at bar defendant was arrested for reckless driving, not for driving while under the influence of intoxicating liquor. Therefore the provisions of the Implied Consent Law do not apply.

For the same reason the right to refuse the test given by ORS 483.634(2) applies only to '* * * A person under arrest for driving a motor vehicle while under the influence of intoxicating liquor in violation of subsection (2) of ORS 483.992 or of a municipal ordinance * * *.' ORS 483.634(2). (Emphasis supplied.)

Of course, under...