State v. Heintz

• Decision Date: 01 May 1979
• Parties: STATE of Oregon, Respondent, v. Robert Bruce HEINTZ, Petitioner. TC 17-023; CA 8026; SC 25913. . **
• Court: Oregon Supreme Court

Page 385

594 P.2d 385

286 Or. 239

STATE of Oregon, Respondent, v. Robert Bruce HEINTZ, Petitioner.

TC 17-023; CA 8026; SC 25913.

Supreme Court of Oregon, In Banc. ^**

Argued and Submitted Feb. 7, 1979.

Decided May 1, 1979.

[286 Or. 240-A] James E. Mountain, Jr., Deputy Public Defender, Salem, argued the cause for petitioner. On the brief were Gary D. Babcock, Public Defender, Robert C. Cannon, Deputy Public Defender, and Mark E. Birge, Law Clerk, Salem.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. On the brief were James E. Redden, Atty. Gen., Al J. Laue, Sol. Gen. and Kent B. Thurber, Asst. Atty. Gen., Salem.

TONGUE, Justice.

Defendant was convicted of manslaughter in the second degree, ORS 163.125, after an automobile accident in Washington County in which the passenger of the car being driven by him was killed. The Court of Appeals affirmed the conviction. 34 Or.App. 175, 578 P.2d 447 (1978). In doing so it rejected defendant's contentions: (1) that the taking of a blood sample at a hospital without defendant's consent and not as an incident to his arrest was an unreasonable search and seizure, and (2) that the results of the blood tests were inadmissible in the absence of evidence that the technician performing such tests had a permit as required by ORS 487.815. We accepted review because of the importance of the questions raised by these contentions.

1. The taking of the blood sample.

In considering defendant's first contention the facts are important, as they appear from the record of the hearing on defendant's motion to suppress the blood alcohol test results.

Officer Bailey was the first police officer at the scene of the accident, arriving at 4:23 a. m. He found that defendant's car had left Cornell Road at a point where he found no skidmarks and had "ploughed the dirt" off the road for 57 feet before striking a power pole and then continuing on for another 163 feet before striking and breaking another power pole, where the car had come to rest on its side, "wrapped around" the power pole, with its top smashed in and with defendant and his passenger trapped inside.

Officer Bailey called for a rescue unit of firemen. It then took them one hour and forty minutes to remove defendant from the wreckage. While defendant was lying on a stretcher and prior to his being put into an ambulance, Officer Bailey asked him "if he had been drinking" and was told "yes * * * he had been drinking beer earlier." The officer also testified that defendant had "a moderate odor of alcohol about his breath and bloodshot eyes." ¹

A second officer, Officer Owsley, arrived at the accident scene at 5:29 a. m., before the rescue unit had "extricated" defendant from the wreckage. He "surveyed the scene" and took pictures, but did not talk to the defendant at that time. Defendant was then taken by ambulance to St. Vincent's Hospital, the hospital closest to the point of the accident. Officer Owsley testified that he went to the hospital to investigate the case as a negligent homicide because a person had been killed and he had been told by Officer Bailey that the defendant had admitted that he had been drinking.

At the hospital Officer Owsley talked to the defendant. He testified that he bent down close to defendant and "could smell a strong odor of sour odor of alcohol beverage on his breath" and also noticed that "he had very bloodshot eyes." Officer Owsley also testified that at the hospital he "formed the opinion" that defendant was under the influence of intoxicating liquor, based upon the strong, sour odor of alcoholic beverages on his breath, the manner of his driving (i. e., the indications at the scene that defendant's car was going at a tremendous rate of speed) and defendant's admission that he had been drinking.

At 6:32 a. m. Officer Owsley taped a conversation with defendant which was paraphrased as follows:

"We would like to draw blood for the purpose of a blood alcohol test. Will you consent to that? Okay, and you have nodded your head. Okay, thank you very much."

Officer Owsley testified that defendant "appear(ed) to be able to understand (the) question" and that he was lucid and aware and nodded his head, but that he probably did not understand the implication that the blood test could be used against him in a criminal case. The officer then prepared "consent forms," as required for the hospital to draw the blood, and which were witnessed by two nurses, who testified that they would not have done so if they had felt that defendant had not consented, but that defendant was in "pretty bad shape" at that time. The consent form was not read to defendant or signed by him. A blood sample was then taken by a hospital technician. A second blood sample was taken at 7:32 a. m. At no time prior to the taking of these blood samples was defendant formally placed under arrest.

According to the doctor in the emergency room at the time the blood samples were taken from defendant, he was then in "serious condition." He had a fractured arm, a compound fracture of the leg, a concussion, and numerous head and scalp lacerations. There were three or four people working on him. He had oxygen tubes in his nose, catheters in his bladder and veins and was being fed intravenously.

Officer Owsley testified that to secure a search warrant for the drawing of the blood at that time, he "would have had to get back to the office and would have had to dig out a typist," apparently to type the affidavit necessary to secure the warrant; that if he had believed that he needed a search warrant he would have secured one, but that he was "not sure that (he) would have had time" to do so. A warrant was later secured, however, to obtain the two blood samples from the hospital.

On this record the trial court denied defendant's motion to suppress, holding that in this case consent was irrelevant because there was probable cause and exigent circumstances sufficient to justify drawing of the blood; that there was no need to make an arrest before doing so, and that an arrest "might even have caused some kind of psychological or medical damage to the patient at that particular time * * * which might have jeopardized * * * defendant's life or his ability to get well * * *."

The Court of Appeals affirmed, holding that:

"* * * A warrantless search is permissible if there was probable cause for a search and exigent circumstances. Defendant's admission that he had been drinking is substantial evidence of probable cause. There were exigent circumstances as a matter of law because of the medical fact that alcohol in the blood dissipates with the passage of time." 34 Or.App. at 178, 578 P.2d at 448.

Defendant contends in his petition for review that:

"The Court of Appeals' decision condoning the warrantless seizure of defendant's blood, without his consent, and while he was not under arrest, is inconsistent with and contradictory to the overwhelming majority of cases interpreting the United States Supreme Court decision in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) and the Fourth and Fourteenth Amendments to the United States Constitution."

In Schmerber, as in this case, the defendant was involved in an auto accident. The patrolman arriving at the scene shortly after the accident smelled liquor on defendant's breath and noticed his eyes appeared bloodshot. The defendant was taken to a hospital for treatment. While in the hospital, he was arrested for driving under the influence. After the arrest, a sample of the defendant's blood was withdrawn by a physician at the police officer's request. The officer possessed no search warrant, nor did the defendant consent. Schmerber objected to the admission in evidence of the blood alcohol test results at trial, asserting they were the product of an unconstitutional search and seizure. The United States Supreme Court rejected the contention and held the blood test results to be admissible, stating that:

"Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to petitioner's arrest." 384 U.S. at 771, 86 S.Ct. at 1836.

Defendant construes Schmerber as holding that before blood can be taken from a defendant under such facts, there must first be an arrest of the defendant in the absence of consent by him. Some state courts have so held, as contended by defendant. ² In this case, however, at the time of the taking of the sample of blood from this defendant, he was in a hospital in such a serious condition as to be unable to give knowing consent to the taking of such a sample. Indeed, defendant concedes in his petition for review that:

"Several courts acknowledge a prior arrest requirement in Schmerber, but deem that requirement satisfied there the accused's state of consciousness is such that he could not be made aware he was under arrest. * * * "

As stated in Mercer v. State, 256 Ark. 814, 510 S.W.2d 539, 541 (1974), under similar facts:

" * * * (I)t would be absurd and ridiculous to hold that an officer would have to be so inhumane as to invariably arrest a person teetering on the brink between life and death before his blood alcohol content would be admissible in evidence. * * * "

To the same effect, it was held in People v. Fidler, 175 Colo. 90, 485 P.2d 725, 727 (1971), that:

"In Schmerber, the defendant, on advice of counsel, refused to consent. Here, the defendant was in a semiconscious condition and was unable to consent or to refuse to give his consent. These differences do not affect the Schmerber principle.

"Also, in Schmerber, it appears that the defendant was arrested prior to the time the police officer directed the doctor to withdraw the blood. The record here does not disclose when Fidler was arrested. This is not a controlling fact under the circumstances of this case. The patrol officer, given the facts as to the collision, the smell of...