[177] JOHNSON, J.
Defendant was convicted after a jury trial of manslaughter in the second degree. ORS 163.125. On appeal defendant makes several assignments of error. His first two assignments are that the trial court erred in admitting evidence of the results of blood-alcohol tests. The third assignment is that the trial court erred in not granting a mistrial. The remaining assignments do not warrant discussion.
Defendant was the driver of an automobile involved in a single car accident shortly after 4:00 a.m. on May 20, 1976. The passenger in the vehicle was killed and defendant was seriously injured. Defendant admitted to a police officer investigating at the scene of the accident that he had been drinking beer earlier. The officer also detected a moderate odor of alcohol on defendant’s breath and noted that defendant’s eyes were bloodshot. Defendant was then taken to the hospital for treatment. At the request of the police, blood samples were taken by a hospital lab technician to determine blood-alcohol content. The analysis was performed by a criminologist for the Oregon State Police. The criminologist is a college graduate with a bachelor of science degree and has had one year of medical technology training at the University of Oregon Medical School. She is nationally certified as a medical laboratory technician. She worked two years in a medical laboratory and four years as a criminologist for the Oregon State Police, and has performed over 100 blood-alcohol analyses. There was no evidence that she possessed a valid permit from the Health Division to perform blood-alcohol analyses.
I
Defendant, relying on Schmerber v. California, 384 US 757, 86 S Ct 1826, 16 L Ed 2d 908 (1966), contends that the taking of the blood sample constituted an unreasonable search and seizure because it was not taken pursuant to a valid consent or as incident to an arrest. Although other jurisdictions may have adopted [178] the interpretation of Schmerber advanced by defendant, we read that case as merely establishing that taking a blood-alcohol test is a search subject to the same constitutional requirements governing warrant-less searches as any other search. Cf. Cupp v. Murphy, 412 US 291, 93 S Ct 2000, 36 L Ed 2d 900 (1973). 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. State v. Osburn, 13 Or App 92, 508 P2d 837 (1973). The trial court’s conclusion that the search was valid must be affirmed. See Ball v. Gladden, 250 Or 485, 443 P2d 621 (1968).
II
Defendant next contends that the blood test was inadmissible because the person performing the test did not have a permit as required by ORS 487.815(1), which provides:
"Chemical analyses of the person’s breath, blood, urine or saliva, to be valid under ORS 487.545, shall be performed * * * by an individual possessing a valid permit to perform such analyses issued by the Health Division.”
However, ORS 487.820 provides:
"The provisions of the implied consent law, ORS 487.805 to 487.815, 487.825 to 487.835, except ORS 487.545and subsection (3) of ORS 487.805, shall not be construed by any court to limit the introduction of otherwise competent, relevant evidence in any civil action, suit or proceedings or in any criminal action other than a violation of ORS 487.540 or a similar municipal ordinance in proceeding under ORS 482.540 to 482.560.” (Emphasis supplied.)
The clear import of the latter statute is that the statutory rules concerning the introduction of evidence contained in the implied consent law, including ORS 487.815, apply only in driving while under the [179] influence (DUII) proceedings, ORS 487.540, and have no application to this prosecution for manslaughter. The only doubt cast on that proposition is the ambiguous language "except ORS 487.545” contained in ORS 487.820, and a footnote in State v. Stover, 271 Or 132, 531 P2d 258 (1975), decided under the law existing prior to the enactment of ORS 487.820.
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[177] JOHNSON, J.
Defendant was convicted after a jury trial of manslaughter in the second degree. ORS 163.125. On appeal defendant makes several assignments of error. His first two assignments are that the trial court erred in admitting evidence of the results of blood-alcohol tests. The third assignment is that the trial court erred in not granting a mistrial. The remaining assignments do not warrant discussion.
Defendant was the driver of an automobile involved in a single car accident shortly after 4:00 a.m. on May 20, 1976. The passenger in the vehicle was killed and defendant was seriously injured. Defendant admitted to a police officer investigating at the scene of the accident that he had been drinking beer earlier. The officer also detected a moderate odor of alcohol on defendant’s breath and noted that defendant’s eyes were bloodshot. Defendant was then taken to the hospital for treatment. At the request of the police, blood samples were taken by a hospital lab technician to determine blood-alcohol content. The analysis was performed by a criminologist for the Oregon State Police. The criminologist is a college graduate with a bachelor of science degree and has had one year of medical technology training at the University of Oregon Medical School. She is nationally certified as a medical laboratory technician. She worked two years in a medical laboratory and four years as a criminologist for the Oregon State Police, and has performed over 100 blood-alcohol analyses. There was no evidence that she possessed a valid permit from the Health Division to perform blood-alcohol analyses.
I
Defendant, relying on Schmerber v. California, 384 US 757, 86 S Ct 1826, 16 L Ed 2d 908 (1966), contends that the taking of the blood sample constituted an unreasonable search and seizure because it was not taken pursuant to a valid consent or as incident to an arrest. Although other jurisdictions may have adopted [178] the interpretation of Schmerber advanced by defendant, we read that case as merely establishing that taking a blood-alcohol test is a search subject to the same constitutional requirements governing warrant-less searches as any other search. Cf. Cupp v. Murphy, 412 US 291, 93 S Ct 2000, 36 L Ed 2d 900 (1973). 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. State v. Osburn, 13 Or App 92, 508 P2d 837 (1973). The trial court’s conclusion that the search was valid must be affirmed. See Ball v. Gladden, 250 Or 485, 443 P2d 621 (1968).
II
Defendant next contends that the blood test was inadmissible because the person performing the test did not have a permit as required by ORS 487.815(1), which provides:
"Chemical analyses of the person’s breath, blood, urine or saliva, to be valid under ORS 487.545, shall be performed * * * by an individual possessing a valid permit to perform such analyses issued by the Health Division.”
However, ORS 487.820 provides:
"The provisions of the implied consent law, ORS 487.805 to 487.815, 487.825 to 487.835, except ORS 487.545and subsection (3) of ORS 487.805, shall not be construed by any court to limit the introduction of otherwise competent, relevant evidence in any civil action, suit or proceedings or in any criminal action other than a violation of ORS 487.540 or a similar municipal ordinance in proceeding under ORS 482.540 to 482.560.” (Emphasis supplied.)
The clear import of the latter statute is that the statutory rules concerning the introduction of evidence contained in the implied consent law, including ORS 487.815, apply only in driving while under the [179] influence (DUII) proceedings, ORS 487.540, and have no application to this prosecution for manslaughter. The only doubt cast on that proposition is the ambiguous language "except ORS 487.545” contained in ORS 487.820, and a footnote in State v. Stover, 271 Or 132, 531 P2d 258 (1975), decided under the law existing prior to the enactment of ORS 487.820.
ORS 487.5451 is a statute applicable to any criminal or civil proceeding establishing presumptions relating to blood alcohol content and the proof of being under the influence of intoxicating liquors. The statute does not purport to govern the admissibility of evidence. However, ORS 487.815(1) prescribes a rule of admissibility which specifically refers to ORS 487.545. ORS 487.820 in turn states that the implied consent law, "except ORS 487.545” does not apply in civil and criminal proceedings other than DUII. The only rational explanation for this double negative in ORS 487.820 is that the presumptions contained in ORS 487.545 continue to apply in all civil and criminal proceedings, but the admissibility rule of ORS 487.815 and the reference therein to ORS 487.545 do not. Indeed, this is clear because ORS 487.820 specifically states that ORS 487.815 does not apply in criminal and civil proceedings other than DUII.
In State v. Stover, supra, the Supreme Court held that the implied consent law rules of admissibility applied in a prosecution for a criminally negligent [180] homicide under the law at the time of the trial in that case. In its opinion the court acknowledged the subsequent enactment of ORS 483.648, now ORS 487.820, and stated that an opposite result would occur under the new statute. 271 Or at 146-147 at n 10. However, the court went on to comment in a footnote as follows:
Hi * *
"However, in State v. Fogle, 254 Or 268, 459 P2d 873 (1969), this court dealt with the situation where the state failed to introduce any evidence that the equipment used to conduct the breath test had been tested for accuracy by the State Board of Health as required by ORS 483.664(2)(c). Thus our decision in Fogle was aimed at the very trustworthiness and competency of the test results. The ruling in Fogle would not be affected by the passage of ORS 483.648: 'The provisions of the implied consent law shall not be construed by any court to limit the introduction of otherwise competent, relevant evidence. * * *’ (Emphasis added)” 271 Or at 147, n 11.
In State v. Fogle, 254 Or 268, 459 P2d 873 (1969), the court held that a blood-alcohol test was inadmissible in a negligent homicide action because of ORS 483.664(2), now ORS 487.815(2)(c).2 Presumably the [181] Fogle rule necessarily also applies to ORS 487.815(1) which is at issue here. However, the court’s comment that Fogle would not be affected by the passage of ORS 487.820 was dictum relegated to footnote status. In the absence of a definitive Supreme Court decision, we feel compelled to hold that Fogle was overruled by the passage of ORS 487.820. The criminologist’s testimony in this case concerning the blood test was certainly competent by any common law rule of evidence. She had ample training and experience in administering blood-alcohol tests to get over the threshold of admissibility. The weight to be afforded her testimony was for the jury. Furthermore, ORS 487.820 should be liberally construed to accomplish its stated purpose, to permit "the introduction of otherwise competent, relevant evidence in any civil * * * or criminal action.” A strict rule of construction could work harsh results. To illustrate, a defendant might wish to introduce a blood test performed by the most eminent hematologist in the world. Presumably under Fogle, such test would be inadmissible if the physician did not have a valid permit from the Health Division. The legislature, in enacting ORS 487.820, intended to avoid such results. Presumably, the legislature considered a permit system necessary in DUII prosecutions because of the tremendous volume of cases. It did not intend to extend the system to other criminal and civil proceedings where usually more substantial interests are at stake.
m
Defendant testified on direct examination that on the evening of, but prior to, the accident he and his [182] companion had attended a social gathering at which beer had been consumed. On cross-examination the prosecutor asked:
"Q Was marijuana being smoked at that party, that get together?”
Defendant objected. The trial court ruled that it was permissible to question defendant about whether he had smoked marijuana for the limited purpose of impeaching defendant’s ability to observe and remember the accident. The following colloquy then took place:
"MR. UPHAM [the prosecutor] Mr. Heintz, was marijuana being smoked at that party that you have described in your direct examination?
"A I don’t know that it was that substance but there was a substance there alleged to be marijuana.
"Q Alleged to be marijuana that was smoked at the party?
"A Yes.
"MR. UPHAM: I have nothing further.
"MR. STRAND: I have nothing further.
"THE COURT: Okay. You may step down.”
Defendant then moved for a mistrial on the grounds that the purpose of the questions were not to impeach defendant’s ability to observe and remember, but to show that defendant was guilty of a crime other than that which he was charged. The trial court denied the motion, but admonished the jury to disregard the testimony. Defendant argues that the mistrial should have been granted. We disagree. Defendant concedes that the trial court was initially correct in permitting the line of questioning. The motion for mistrial is based on the fact that the prosecutor never asked the ultimate question: "Did you smoke marijuana?” The prosecutor probably surmised from the answers given to his foundation questions that the answer would be no. Defendant had ample opportunity to ask the ultimate question on rebuttal. Assuming, arguendo, the testimony was error, the judge instructed the jury [183] to disregard it. See State v. Jones, 279 Or 55, 62, 566 P2d 867 (1977).
Affirmed.