State v. Langevin

715 P.2d 1355, 78 Or. App. 311, 1986 Ore. App. LEXIS 2922

Opinion

PER CURIAM

Defendant appeals his conviction for criminally negligent homicide, contending that the police did not have authority to draw blood from him while he was unconscious, and that, if they did have such authority, they were required to obtain a warrant before analyzing his blood several days later for alcohol content.

We hold that the police did have the authority to take a sample of defendant’s blood. Former ORS 487.835(2); 1 State v. Heintz, 286 Or 239, 594 P2d 385 (1979); State v. Calderon, 67 Or App 169, 678 P2d 1245, rev den 297 Or 272 (1984). That statute also authorized the testing of the blood sample. However, under the Oregon Constitution, in the absence of exigent circumstances, the officers did not have authority to test it for its alcohol content without a warrant, because they had ample time within which to obtain one. State v. Lowry, 295 Or 337, 667 P2d 996 (1983); State v. Westlund, 75 Or App 43, 705 P2d 208, rev allowed 300 Or 332 (1985).

Reversed and remanded for a new trial.

1 ORS 487.835(2) was amended by Or Laws 1985, ch 16, § codified as ORS 813.140. 299, and, as amended,