State v. Shepherd

1992 OK CR 69, 840 P.2d 644, 63 O.B.A.J. 3194, 1992 Okla. Crim. App. LEXIS 87, 1992 WL 310354

• Court: Court of Criminal Appeals of Oklahoma
• Decided: October 23, 1992
• Docket: S-88-631
• Status: Published

Opinions

OPINION

BRETT, Judge:

Robert Eugene Shepherd, appellee, was tried by a judge for the crime of Manslaughter in the First Degree, in violation of 21 O.S.1981, § 711(1), in Case No. CRF-87-6060, in the District Court of Oklahoma County. The trial court sustained the ap-pellee’s motion to suppress blood test results and also sustained his demurrer to the evidence. The State now appeals this decision on reserved questions of law pursuant to 22 O.S.1981, § 1053.

On April 27,1987, the appellee was allegedly driving an automobile which was involved in a fatality accident. The appellee was taken to the hospital where he was in a semi-conscious state when approached by the investigating officer. Upon detecting a strong odor of alcohol about the appellee, the officer instructed a nurse to draw blood from him for a blood alcohol test. The State stipulated that this blood was taken without the consent of the appellee and that no evidence indicated that he was given the opportunity to revoke any implied consent when he regained consciousness.

The first reserved question of law that we will address is how and when an officer may effectuate an arrest of an unconscious individual so that his blood can be taken in accordance with the mandates of the implied consent statutes 47 O.S.1981, §§ 751-753. In order to request a driver to submit to a blood alcohol test, it is well established that an officer must first place the driver under arrest. See Smith v. State ex rel. Dept. of Public Safety, 680 P.2d 365 (Okl.1984). Such arrest must be made in compliance with 22 O.S.1981, § 190, which requires that, “[a]n arrest is made by an actual restraint of the person of the defendant, or by his submission to the custody of the officer” (emphasis added). This Court has held that this provision requires an officer to actually restrain an individual’s freedom of movement or attempt to take an individual into custody. Holbird v. State, 650 P.2d 66, 70 (Okl.Cr.1982). It has also found that where there is no resistance or manual seizure, “[t]here must be an intent to arrest by the officer and an understanding by the arrestee that submission is necessary.” DeVooght v. State, 722 P.2d 705, 708 (Okl.Cr.1986).

No exception to this general rule has been created for cases in which an individual is unconscious when he is to be placed under arrest. We agree with the State that it would obviously be futile to verbally inform an unconscious person that he is under arrest. However, some type of actual restraint is necessary so that when an individual regains consciousness, he may immediately be made aware that he has been arrested and that his liberty has been restricted so that he is not free to go. The means of actual restraint necessary to comply with this statutory requirement may vary according to what is reasonable under the circumstances of each situation. For instance, it may be reasonable in some instances to place a guard outside of an individual's hospital room and it may be reasonable in other cases for the police to merely inform the hospital officials that the individual has been placed under arrest and is not to be discharged without the consent of the police. Whatever the case, such actual restraints must take place before the individual’s blood is drawn, or he will not have been under arrest and the blood will have been taken in violation of the implied consent statute.

Disposition of the State’s other reserved questions of law requires us first to deal with the issue of whether 47 O.S.Supp. 1988, § 753 is constitutional. It has long been held that warrantless searches and seizures are per se unreasonable under the Fourth Amendment. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). However, an exception to this general rule was set forth by the Supreme Court in Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), where it was found that an arresting officer could require an individual to submit to a blood alcohol test where the officer reasonably believed that under the circumstances, the delay necessary to secure a warrant could have resulted in the destruction of evidence. Id., 384 U.S. at 770, 771, 86 S.Ct. at 1835, 1836.

Title 47 O.S.Supp.1988, § 753 allows an officer to take blood against the objections of a conscious person whom he has placed under arrest when, “the investigating officer has probable cause to believe that the person under arrest, while intoxicated, has operated his motor vehicle in such a manner as to have caused the death or serious physical injury to any other person or persons.” This statutory provision does not require the constitutional mandates set forth in Schmerber. However, although section 753 is not constitutionally adequate on its face, it may be applied in a way that satisfies constitutional requirements if the investigating officer only instructs that blood be drawn from the driver when the officer reasonably believes that under the circumstances, any delay necessary to secure a warrant may result in the loss of evidence. Thus, the determination of whether section 753 has been applied in a constitutionally sound manner must be made on a case by case basis.

Under 47 O.S.Supp.1988, § 753, a conscious driver may be required to submit to a blood test under certain circumstances. The State asks this Court whether an unconscious driver in similar circumstances should be denied the right to withdraw consent to a blood test upon regaining consciousness. In Sartin v. State, 617 P.2d 219, 222 (Okl.Cr.1980), this Court held that “[ujnder the implied consent statute, a conscious person has the right to refuse to submit to the test, and equal protection requires that an unconscious person be afforded the same right of refusal as that given a conscious person.” It follows then, that if the implied consent statute does not afford a conscious person the right to refuse the blood test in a certain situation, equal protection would require that an unconscious person in the same situation not be treated differently.

The State further asks whether the blood test results could have been admitted under the exigent circumstances exception to the warrant requirement as set forth in Schmerber. The driver in Schmerber was arrested without a warrant as the officer had probable cause to believe that he was driving under the influence. The Supreme Court found that under the facts of the case, where time had been taken to bring the accused to a hospital and investigate the scene of the accident, there was not sufficient time to seek out a magistrate to secure a warrant. The delay necessary to obtain a warrant may have resulted in the destruction of evidence. Thus, the attempt to secure evidence of blood alcohol by taking a blood test was an appropriate incident to the defendant’s arrest and there was no violation of the forth amendment warrant requirement. Schmerber, 384 U.S. at 770, 771, 86 S.Ct. at 1835, 1836. We find that under similar circumstances, this procedure would be acceptable in Oklahoma not only based upon the federal constitutional standards set forth in Schmerber, but also because it does not conflict with the procedures allowed by Oklahoma’s implied consent statutes.

Finally, the State has posed several questions relating to the weight of rulings made by district court judges. However, we find that these questions were not properly reserved for appeal because they were not reserved by the State at trial. Instead, they were raised by the district judge after the State had rested its case. Title 22 O.S.1981, § 1053 clearly limits appeals upon reserved questions of law to those “reserved by the state or a municipality.” This does not include questions asked by a district judge as was the situation in this case. Because the State’s right to appeal rests on statutory authority that cannot be enlarged by construction, we will not address these questions. See State v. Humphrey, 85 Okl.Cr. 153, 186 P.2d 664 (1947).

RESERVED QUESTIONS OF LAW ANSWERED.

LANE, P.J., and PARKS, J., concur. JOHNSON, J., concurs in part/dissents in part. LUMPKIN, V.P.J., dissents.