State v. Fogle

• Decision Date: 08 April 1969
• Parties: STATE of Oregon, Respondent, v. George McGill FOGLE, Appellant. . In Banc
• Court: Oregon Supreme Court

Page 873

459 P.2d 873

254 Or. 268

STATE of Oregon, Respondent, v. George McGill FOGLE, Appellant.

Supreme Court of Oregon.

In Banc.

Argued before Department 2 and submitted April 8, 1969;

reargued September 8, 1969.

Decided Oct. 15, 1969.

William L. Lasswell, Roseburg, argued and reargued the cause and filed a brief for appellant.

Lauren K. Loveland, Deputy Dist. Atty., Roseburg, argued and reargued the cause for respondent. On the brief was Doyle L. Schiffman, Dist. Atty., Roseburg.

Before PERRY, C.J., and McALLISTER, SLOAN, O'CONNELL, GOODWIN, DENECKE and HOLMAN, JJ.

HOLMAN, Justice.

Defendant was convicted of negligent homicide arising out of an automobile accident which resulted in the death of a passenger in a vehicle operated by him.

Defendant charges as error the admission into evidence of the result of a chemical analysis of his breath for alcohol. He argues that he did not voluntarily submit to the chemical test because he was not competent to give such consent. He claims he had the right to refuse the test under the Implied Consent Law ¹ and that this implies a voluntary submission. While the statute recognizes that a person may refuse to submit to the test, the legislature could hardly have contemplated that it was necessary that there be a completely knowing and understanding submission. If this were the case, the only people who could be tested would be those who were not sufficiently intoxicated to interfere with their mental processes.

Defendant also argues that the rule of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966), applies and therefore the 'consent' to the test was not voluntary in a constitutional sense. This contention has been put to rest by Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). In that case blood was taken from a defendant for an alcohol test over his objection. The court held that his federal Fourth and Fifth Amendment rights, as well as due process, were not violated. The evidence was not considered to be of a testimonial or communicative nature and therefore not within the purview of the Fifth Amendment.

Defendant also contends that the results of the test were not admissible because there was no evidence that the equipment used to analyze defendant's breath had been tested and certified as prescribed by ORS 483.644(1) and (2) (c), which provide as follows:

'(1) Chemical analyses of the person's breath, blood, urine or saliva, to be valid under ORS 483.642, shall be performed according to methods approved by the State Board of Health and by an individual possessing a valid permit to perform such analyses issued by the State Board of Health.

'(2) The State Board of Health shall:

'(c) Test and certify the accuracy of equipment to be used by police officers for chemical analyses of a person's breath before regular use of such equipment and periodically thereafter at intervals of not more than 60 days, such tests and certification to be conducted by trained technicians.'

When the state offered the result of the blood test in evidence, defendant objected to its admission on the ground that the state had not shown that subsection (2)(c) of the above statute had been complied with.

Subsection (1) of the same statute provides that the State Board of Health shall approve the methods of performing the test for alcohol and that the person performing the test must possess a permit to so perform it. The Board approved the method used and the person performing the test in the present case, but the equipment necessary to this method (Sobermeter) is such that it is destroyed upon use and therefore individual units cannot be pre-tested. We do not construe defendant's objection to be sufficiently broad to raise the question whether the State Board of Health had the authority to approve a method in which the equipment is incapable of being pre-tested.

In the present case the testimony was that the State Police random checked units when a shipment of the Sobermeters was received by them and before they were sent out for use in the field. The State Police also random checked from its stock about every 60 days thereafter.

The individual who spot-checks the accuracy of the Sobermeters for the State police is not authorized to perform this duty by the State Board of Health. The record shows that random units out of each shipment that are received by the State Police are sent to the State Board of Health by the State Police for spot checking but there is no evidence that they were ever tested by the State Board of Health nor is there any testimony that samplings were sent every 60 days thereafter.

Presuming but not deciding that spottesting of the Sobermeters by the State Board of Health would comply with the requirements of ORS 483.644(2)(c), there is a complete absence of evidence of any sort of testing by them.

The contention has been made that the law presumes that such a statute has been complied with in the absence of a showing to the contrary because of the disputable presumption that official duty has been regularly performed. The following statement concerning the application of such a presumption is found in 9 Wigmore on Evidence (3d ed.) 488, § 2534:

'The general experience that a rule of official duty, or a requirement of legal conditions, is fulfilled by those upon whom it is incumbent has given rise occasionally to a presumption of due Performance of official duty. This presumption is more often mentioned than enforced; and its scope as a real presumption is indefinite and hardly capable of reduction to rules.

'It may be said that most of the instances of its application are found attended by several conditions; first, that the matter is more or less in the past, and incapable of easily procured evidence; secondly, that it involves a mere formality, or detail of required procedure, in the routine of a litigation or of a public officer's action; next, that it involves to some extent the security of apparently vested rights, so that the presumption will serve to prevent an unwholesome uncertainty; and, finally, that the circumstances of the particular case add some element of probability.' (Emphasis theirs.)

While the presumption is codified in Oregon, there is no reason to conclude that it would be applicable where it would not have been applicable in the absence of codification. It is our conclusion that the present situation is not one to which the presumption is applicable when judged by Wigmore's standards. The Sobermeter in question was used more than 60 days after it was received by the State Police. While there is evidence that random samples were sent to the State Board of Health for testing at the time of the receipt of shipments by the State Police, there is no evidence that the State Board of Health was sent random samples for testing every 60 days thereafter. There can be no probability that the State Board of Health tested something which there is no evidence it ever received. Also see the discussion in State Highway Com. v. Heintz Constr., 245 Or. 530, 537--539, 423 P.2d 175 (1967), concerning the application of the presumption here in question which is codified in ORS 41.360(15).

The suggestion has been made that if the legislature had intended testing and certification of the equipment to be a prerequisite to the admissibility in evidence of the results of the test, it would have made the provisions of subsection (2)(c) a part of subsection (1). The argument is made that compliance or non-compliance by the Board with the provisions of subsection (2) (c) goes only to the weight to be accorded the test and not its admissibility. Had the statute been originally drafted in its present form, one could rightly pause to consider what the legislature intended by such a drafting technique. However the legislative history offers a perfectly logical explanation for what happened. The test-and-certify provision in subsection (2)(c) was inserted as an amendment after the statute was drafted in its original form. The legislative committee merely neglected to polish its product by properly integrating the amendment into the statute as originally written. The legislative history shows that the principal purpose of the amendment was to prevent the conviction of persons as a result of faulty equipment. It is difficult to think of a reason why the legislature would consider the competence of the operator to be more important than the accuracy of the equipment. The purpose of the amendment can best be effectuated by requiring the state to prove that the equipment used was tested and certified for accuracy by the State Board of Health in compliance with the statute. The burden which such a requirement places upon the state is relatively light when compared to the difficulty a defendant would encounter were the burden upon him to prove non-compliance with the statute.

Most cases have held that strict compliance with similar statutes must be shown as a prerequisite to the introduction of the results of the test. Jones v. City of Forrest City, 239 Ark. 211, 388 S.W.2d 386 (1965); State v. Fox, 177 Neb. 238, 128 N.W.2d 576 (1964); and State v. Powell, 264 N.C. 73, 140 S.E.2d 705 (1965), all hold that in order for chemical test evidence to be admissible the state must first establish that the particular test method employed had been officially approved by the state agency. In Otte v. State, 172 Neb. 110, 108 N.W.2d 737 (1961), evidence of a blood test was excluded because it was not shown that the pathologist who analyzed the blood had a permit to do so from the Department of Health. In Kyhl v. Commonwealth, 205 Va. 240, 135 S.E.2d 768 (1964), it was held that because it was not shown that the needle used in drawing a blood sample had been sterilized as required by statute the results of the test were not admissible.

It is our opinion that the results of the breath test should not...