State v. Calderon

• Decision Date: 05 June 1984
• Docket Number: 29292,Nos. 29293,s. 29293
• Parties: STATE of Oregon, Respondent, v. Alfredo Freas CALDERON, Appellant. & 29294; CA A25985, A25986 & A25987.
• Court: Oregon Court of Appeals

Page 1245

678 P.2d 1245

67 Or.App. 169

STATE of Oregon, Respondent, v. Alfredo Freas CALDERON, Appellant.

Nos. 29293, 29292 & 29294; CA A25985, A25986 & A25987.

Court of Appeals of Oregon.

Argued and Submitted May 27, 1983.

Decided March 7, 1984.

Review Denied June 5, 1984.

Stephen J. Williams, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Kay Kiner James, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on the brief were Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem.

Before RICHARDSON, P.J., and VAN HOOMISSEN and NEWMAN, JJ.

RICHARDSON, Presiding Judge.

Defendant appeals convictions on two counts of manslaughter in the second degree and one count of third degree assault. The charges arose from a traffic accident that resulted in the death of two people and injury to a third. He asserts that the trial court erred in denying his motion to suppress evidence of the alcohol content of his blood derived from blood samples taken on the night of the accident.

We take the facts from the hearing on the motion to suppress. At approximately 7:20 p.m. on October 9, 1981, Polk County Deputy Sheriff Palacios was called to the scene of a traffic accident in Polk County, on Highway 22 between Salem and Dallas. Defendant's car had collided head-on with a car in the oncoming lane. He was injured and was taken to the emergency room at Salem Memorial Hospital, located in Marion County. Palacios spoke with a witness at the scene who said that he saw defendant's car pass him in the median turn lane at approximately 70 to 75 miles per hour before it hit the car in the on-coming lane. Palacios did not see any skid marks in the direction from which defendant's car was traveling but did see approximately 20 feet of skid marks in the direction from which the other car was coming. He saw six empty beer cans in an open bag on the seat of defendant's car. He determined that one beer can contained some drops of beer. Palacios spoke with Corporal Peters, his supervisor, who told him that he had detected a strong odor of alcohol on defendant's breath.

At around 9:45 p.m. Palacios went to defendant's hospital room. Defendant's wife was in the room with him and Palacios heard her ask defendant if he had been drinking and heard defendant tell her he had. When Palacios asked how much, defendant said he had had three beers. Palacios detected an odor on defendant at that time, but he could not tell what it was.

Dr. Garver, the attending physician, told Palacios that defendant had head injuries and was unable to consent to a blood test. He also said that he smelled no odor of alcohol on defendant. Palacios asked Garver to draw a blood sample, and a medical technician drew it. About an hour later Palacios directed that another sample be drawn.

Defendant challenges the seizure of blood samples as unconstitutional under the Oregon and federal constitutions. In support of his motion to suppress, defendant states the first question as:

"Did a police officer have probable cause to order that two samples of blood be drawn from defendant after defendant had been admitted to a hospital with serious injuries from a fatal traffic accident?"

He summarizes his argument:

"There was no probable cause to believe defendant had committed a crime or that the testing of his blood would yield evidence of a crime when a deputy sheriff ordered that two samples of blood be drawn from defendant."

The second question defendant poses is:

"[W]as the police officer authorized to order the seizure of defendant's blood in a county outside of his jurisdiction."

In State v. Heintz, 286 Or. 239, 594 P.2d 385 (1979), the court considered the constitutionality of the use of evidence of blood alcohol content obtained under circumstances similar to those here. Concluding that there was probable cause to arrest and to believe that the sample would reveal alcohol and that defendant's blood sample was "seized in such a manner as would now constitute an arrest under ORS 133.005," ¹ the court found the seizure valid under the state and federal constitutions. Noting that some jurisdictions require an arrest for the validity of such a seizure and that some do not, the court explicitly held open the question of the reasonableness of a seizure of a blood sample when the person is not under arrest.

Defendant did not argue in the trial court or here that it was necessary that he be under arrest before the blood samples could be taken at the instance of the officer. Because defendant does not raise the issue left open in Heintz, we need not address it; we answer only defendant's contention that the officer lacked probable cause to believe that defendant was driving under the influence of intoxicants and that the blood samples would contain evidence of alcohol consumption.

We conclude that there was probable cause. When he ordered the blood sample, the officer had seen the empty beer cans in defendant's car immediately following the accident, had information that Corporal Peters had detected a strong odor of alcohol on defendant's breath, had heard defendant's statement that he had been drinking, had seen the circumstances of the accident indicating that defendant had been driving recklessly and had heard an eyewitness to the accident state that defendant's car was traveling 70 to 75 miles per hour in the center turn lane. Palacios had probable cause to believe that defendant was driving under the influence of intoxicants and probable cause to believe that the blood samples would reveal evidence of alcohol consumption. See State v. Heintz, supra. The warrantless seizure of the blood samples was dictated by the practical necessity to seize the evidence before it dissipated. See Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448 (1957).

Defendant's second contentionis that Palacios lacked authority to order the blood samples taken in Marion County, the location of Salem Memorial Hospital, because he was a Polk County deputy investigating a Polk County accident. ² He contends that there is no specific statutory authority for an officer to conduct a warrantless search outside the jurisdiction of his employment. Because, at the time of this search, an officer had no authority to make an arrest in another jurisdiction (former ORS 133.235(2)), defendant argues that he, by inference, had no authority to conduct a warrantless search outside the geographic area of his employment.

At the time of the incident, ORS 133.235(2) provided:

"If the arrest is otherwise authorized under ORS 133.005 to 133.045, 133.075, 133.100 to 133.340 and 133.450 to 133.475, a peace officer who is outside the jurisdiction of his employment may make an arrest without a warrant for an offense committed within the jurisdiction where he is present. In so doing, the peace officer shall act with the same rights, privileges and immunities as are otherwise provided by law." ³

In State v. Huffman, 49 Or.App. 823, 621 P.2d 78 (1980), we held that under the statute an officer could not serve a traffic summons in another jurisdiction for an offense that took place in that officer's jurisdiction.

In State v. Berg, 60 Or.App. 142, 652 P.2d 1272 (1982), we considered a problem similar to that raised in this case. An Albany police officer, investigating vandalism that had taken place in Linn County, made warrantless arrests and a warrantless seizure of a car in Benton County. We stated:

"At the time and place of defendants' arrest and citation, [the officer] lacked the statutory authority to cite defendants or arrest them without a warrant in Benton County for crimes alleged to have...