State v. Greenough

• Decision Date: 23 February 1972
• Citation: 7 Or.App. 520,93 Adv.Sh. 1421,491 P.2d 630
• Parties: STATE of Oregn, Appellant, v. Myron Edward GREENOUGH, Respondent.
• Court: Oregon Court of Appeals

Page 630

491 P.2d 630

7 Or.App. 520

STATE of Oregn, Appellant, v. Myron Edward GREENOUGH, Respondent.

Court of Appeals of Oregon, Department 1.

Argued and Submitted Oct. 27, 1971.

Decided Dec. 9, 1971.

Rehearing Denied Jan. 4, 1972.

Review Denied Feb. 23, 1972.

John W. Osburn, Sol. Gen., Salem, argued the cause for appellant. With him on the brief was Lee Johnson, Atty. Gen., Salem.

Robert J. McCrea, Eugene, argued the cause for respondent. On the brief were Fred A. A. Divita, and Mulder, Morrow & McCrea, Eugene.

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

SCHWAB, Chief Judge.

Defendant was convicted in the district court of driving under the influence of alcohol. ORS 483.992(2). He appealed to the circuit court for a trial de novo and in that court filed a pretrial motion to suppress the evidence obtained by way of a blood sample taken from him while he was unconscious. The trial judge sustained this motion, and the state has appealed pursuant to ORS 138.060(4).

The trial court's decision that the blood test results should be suppressed was based entirely on statutory grounds. The trial court reasoned:

'The Legislature has, in the court's opinion, provided an exclusive method for obtaining, testing and using tests of body fluids by enactment of the Implied Consent Law, a fair interpretation of which means that the consent of the defendant prior to search and seizure must be obtained. ORS 483.634 limits implied consent to breath tests and expressly provides that a person's refusal to submit to such a test shall not be admissible in any civil or criminal action, suit or proceeding arising out of the acts in question.

'ORS 483.636 provides:

"Chemical test by consent of arrested person. 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.'

'The importance of this section is that it provides for a blood test at the request of the police officer but only if the person expressly consents to such a test * * *.'

Defendant was the driver in a one-car accident in which he was injured. He was unconscious when a police officer arrived to investigate the accident. The officer detected a strong odor of alcohol on defendant's breath. The officer also interviewed one witness at the scene who led the officer to believe the defendant had been driving in an erratic manner prior to the accident. (The record before us fails to disclose the exact statement of the witness.) Based on this information, the officer decided to arrest defendant for driving under the influence, and proceeded to make out a traffic citation at the accident scene.

An ambulance took the defendant to a hospital. The police officer who was still investigating the accident told the ambulance attendants that defendant was under arrest, and that a blood sample should be taken. At the hospital, a physician withdrew a blood sample from defendant's arm. All the foregoing occurred while defendant remained in an unconscious state. Subsequent analysis of the sample revealed .23 per cent alcohol in defendant's blood. ¹

The question presented is whether the trial court erred in concluding that the act of withdrawing blood from defendant while he was unconscious violated any provisions of the Implied Consent Law, ORS 483.634 to 483.646.

At the outset, we note a threshold problem not touched upon in either brief. We stated in State v. Mitchell et al., Or.App., 93 Adv.Sh. 89, 487 P.2d 1156 (1971), and State v. Gassner, Or.App., 93 Adv.Sh. 349, 488 P.2d 822 (1971), that violation of a statute, as distinguished from a constitutional provision, does not necessarily result in the suppression of evidence. (Both Mitchell and Gassner involved possible violations of the knock and announce statute, ORS 133.290.) So even assuming Arguendo a violation of the Implied Consent Law, it might not follow automatically that the evidence in question must be suppressed.

Nevertheless, under the authority of State v. Fogle, 254 Or. 268, 459 P.2d 873 (1969), if a violation of the Implied Consent Law was shown, the evidence was rightfully suppressed. In that case, the Oregon Supreme Court held chemical sobriety-test evidence to be inadmissible because compliance with the detailed requirements of the statute, ORS 483.644, was not proven. Since we see no distinction for present purposes between a ruling during trial that evidence is inadmissible, and a pretrial ruling suppressing evidence, we believe Fogle requires affirmance if there was a violation of the Implied Consent Law. Accord: Kyhl v. Commonwealth, 205 Va. 240, 135 S.E.2d 768 (1964).

We are, however, unable to agree with the trial court's interpretation of the Implied Consent Law. Finding no violation thereof, we reverse.

ORS 483.636, relied upon by the trial court, must be interpreted in context with the balance of the Implied Consent Law and by considering the prior statutes that the Implied Consent Law replaced.

Before the Implied Consent Law was enacted in 1965, prior Oregon statutes applied the same requirements to chemical sobriety tests of 'blood, breath, urine or other bodily substance.' Oregon Laws 1941, ch. 430, Section 1, p. 743; Oregon Laws 1955, ch. 297, Section 1, p. 328. The Implied Consent Law put the emphasis on breath tests. ORS 483.634. The legislative history indicates this change of emphasis was because breath testing devices, properly used, and become highly reliable, were relatively inexpensive, and the breath test could be administered by persons without formal medical training. ² See State v. Fogle, supra (discussing the Sobermeter testing device).

But the legislature was also aware that breath testing devices might not always be readily available to an arresting officer, so also enacted ORS 483.636, quoted above. Under that section, instead of requesting a breath test, the officer can request the arrested person to submit to a test of his 'blood, urine or saliva.' In other words, ORS 483.634 governing breath tests and ORS 483.636 governing tests of blood, urine or saliva enact the same basic rules governing all of these tests. The only difference would be which test the officer requests the arrested person to submit to, which presumably would be based on the availability of different kinds of test equipment.

The policy behind the Implied Consent Law is clear; it is to remove drunk drivers from the highways. When a driver is lawfully arrested for driving under the influence, the police may request that he submit to a chemical sobriety test. The arrested person then has two choices; he can either consent to the test, or refuse it. ³

Although this election rests with the arrested person, whatever decision he makes effectuates the policy behind the Implied Consent Law. If he consents to the test, the results are admissible against him; and a conviction of drunken driving, facilitated by the results of the test, results in the suspension of his driver's license. ORS 482.430(2)(a). If he refuses to consent to the test, no test can be given, and the fact that he refused is inadmissible, ORS 483.634(3), but the refusal may result in the suspension of his license. ORS 482.540.

However, this analysis of the statute applies only to a person who is conscious, since the acts of consenting to or refusing the sobriety test presuppose a conscious person. Here the defendant was unconscious at the time a sample of his blood was taken.

If the question before us were whether an unconscious person could have his license suspended because he refused to submit to a sobriety test, it is clear that under the Implied Consent Law the answer would have to be in the negative. The sanction of administrative suspension of a driver's license applies only when a driver actively refuses to comply with a request to take a breath test in accordance with ORS 483.634, or a request to take some other test under ORS 483.636. Cf., Garcia v. Dept. of Motor Vehicles, 253 Or. 505, 456 P.2d 85 (1969). Not only is it impossible for an unconscious person to refuse or consent to anything, but the procedures of ORS 483.634 simply cannot be read as applying to an unconscious person. ⁴ Courts in other states have interpreted their Implied Consent Laws in this manner. See, Foster v. Tofany, 31 A.D.2d 987, 297 N.Y.S.2d 847 (1969); cf. Application of Scott v. Kelly, 5 A.D.2d 859, 171 N.Y.S.2d 210 (1958).

Instead, the question squarely presented is whether anything in the Implied Consent Law makes inadmissible in a criminal case the test results of a blood sample taken from an unconscious person when the police have probable cause to believe that person was driving under the influence. ⁵

The legislative history of the Implied Consent Law sheds little light on this question. Oregon's first statute concerning chemical tests for persons charged with driving under the influence of alcohol was enacted in 1941. It provided:

'* * * (T)he officer * * * making the arrest may cause a chemical analysis to be made of the blood, breath, urine or other bodily substance of the arrested person, unless the arrested person objects thereto, in order to determine the amount of alcohol then in such person's blood * * *.' Oregon Laws 1941, ch. 430, Section 1, p. 743.

No reference materials are available from the 1941 legislature to pursue the legislative intent at that time. The 1941 Act was later codified as ORS 483.630. In 1955 the legislature made substantial amendments to ORS 483.630, most of them not here relevant. As then amended, ORS 483.630(1) read:

'* * * (T)he officer * * * making the arrest may, upon written consent of the arrested person, cause a chemical analysis to be made of the blood, breath, urine or other bodily substance of the arrested person * * *.' Oregon Laws 1955, ch. 297, Section 1, p. 328.

In 1961, ORS...