SCHWAB, C.J.
Defendant, while driving about 43 miles from Pendleton, ran into a bridge abutment. Defendant and all of his passengers, i.e., Mrs. McMurtry and three of [561] her children, were injured. One of the children, Patrick McMurtry, aged 5, died the day of the accident.
Pour days after the fatal accident defendant was issued a citation for driving with more than .15 percent blood alcohol, a misdemeanor under ORS 483.999 (1). A little more than two months later, defendant was charged with criminally negligent homicide, a felony under ORS 163.145. The district attorney then sought and obtained a dismissal of the misdemeanor charge that was still pending in district court.
At trial on the negligent homicide charge, Mrs. McMurtry testified that defendant had consumed about four or five six-packs of beer on the day of the accident, and that in her opinion defendant was under the influence of intoxicants. There was also evidence that a blood sample taken from defendant at the hospital about two to three hours after the accident contained .16 percent alcohol.
Defendant was convicted, and appeals. He contends the trial court erred in: (1) denying his plea that the negligent homicide trial constituted double jeopardy since the misdemeanor charge arising from the same incident had previously been dismissed; (2) overruling his marital privilege objections to the testimony of Mrs. McMurtry, who he claims is his common law wife under the laws of Idaho; and (3) permitting the blood alcohol test results to be introduced over objections based on claims that the blood sample tested was not obtained in a manner that complied with the Implied Consent Law, ORS 483.634 et seq.
The separate felony and misdemeanor charges brought against defendant in this case were for the same offense under the three-part test of State v. [562] Brown, 262 Or 442, 448, 497 P2d 1191 (1972). See, State v. Leverich, 14 Or App 222, 511 P2d 1265, Sup Ct review allowed (1973). However, unlike in Brown and Leverich, in this ease jeopardy never attached on the misdemeanor charge which was dismissed in the district court on the prosecutor’s motion. Thus, the double jeopardy guarantee was no bar to trial on the negligent homicide charge.
Mrs. McMurtry testified that she and defendant had lived together intermittently in Idaho, that she had a child by defendant in Idaho, and that she at least occasionally used the name Mrs. Stover. While her testimony is somewhat equivocal, it is capable of the interpretation that defendant and Mrs. McMurtry regarded themselves as husband and wife while living in Idaho. Defendant did not testify about his relationship with Mrs. McMurtry. Assuming but not deciding that this evidence was sufficient to establish a common law marriage under Idaho law, Mrs. McMurtry could nevertheless testify in this case because of OES 139.-320, which states:
“* * * [I]n all cases of personal violence upon either [spouse] by the other or of personal violence or other unlawful act committed against any minor child of either or both of the parties, the injured party, husband or wife, shall he allowed to testify against the other * *
Finally, we hold the blood sample tested for alcohol content was obtained in compliance with the Implied Consent Law.
Investigating officers at the accident scene observed a number of beer cans in defendant’s car and detected the odor of beer on defendant’s breath. While defendant was en route to the hospital in an ambulance, the officers radioed ahead and requested hospital per[563] sonnel to obtain a sample of defendant’s blood to test for alcohol content. Defendant was conseions at the hospital. A lab technician told defendant he was going to take a blood sample, and proceeded to do so. Defendant did not testify; the only testimony about the taking of the blood sample came from the lab technician, who stated:
“Q [By the prosecutor] Okay. Did you tell Mr. Stover that you in fact were going to take a blood sample from him?
“A Yes, I did.
“Q Did you request his permission at all or just tell him?
“A No. We just told him.
* * # %
“Q Okay. Did Mr. Stover say anything?
“A Yes!
“Q What did he say?
“A He says, ‘Give me a break.’
“Q Did he say anything else?
“A No.
*
“Q [By defense counsel] What did this [i.e., defendant’s statement] indicate to you?
“A That he probably knew what we were taking the blood for.
“Q Would it indicate that he didn’t want you to take some blood?
“A Probably so.
“Q And you didn’t request any more permission from him, then, and you just went ahead and took the sample?
“A That is correct.”
OBS 483.636 provides:
“Nothing in OBS 483.634 is intended to, in lieu of a request for and administration of a breath test, [564] 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.”
In State v. Greenough, 7 Or App 520, 491 P2d 630 (1971), Sup Ct review denied (1972), we held the Implied Consent Law did not prohibit taking a blood sample from a person who was unconscious when the police had probable cause to believe he had been driving under the influence just before the accident that rendered him unconscious. In reaching that conclusion we interpreted ORS 483.636 in conjunction with the rest of the Implied Consent Law and concluded the “expressly consents” phrase in ORS 483.636 means, in effect, “unless expressly refuses.” In State v. Annen, 12 Or App 203, 504 P2d 1400, Sup Ct review denied (1973), we held that ORS 483.636 did prohibit blood alcohol test results being introduced in evidence when the blood sample tested had been taken over a driver’s express refusal.
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SCHWAB, C.J.
Defendant, while driving about 43 miles from Pendleton, ran into a bridge abutment. Defendant and all of his passengers, i.e., Mrs. McMurtry and three of [561] her children, were injured. One of the children, Patrick McMurtry, aged 5, died the day of the accident.
Pour days after the fatal accident defendant was issued a citation for driving with more than .15 percent blood alcohol, a misdemeanor under ORS 483.999 (1). A little more than two months later, defendant was charged with criminally negligent homicide, a felony under ORS 163.145. The district attorney then sought and obtained a dismissal of the misdemeanor charge that was still pending in district court.
At trial on the negligent homicide charge, Mrs. McMurtry testified that defendant had consumed about four or five six-packs of beer on the day of the accident, and that in her opinion defendant was under the influence of intoxicants. There was also evidence that a blood sample taken from defendant at the hospital about two to three hours after the accident contained .16 percent alcohol.
Defendant was convicted, and appeals. He contends the trial court erred in: (1) denying his plea that the negligent homicide trial constituted double jeopardy since the misdemeanor charge arising from the same incident had previously been dismissed; (2) overruling his marital privilege objections to the testimony of Mrs. McMurtry, who he claims is his common law wife under the laws of Idaho; and (3) permitting the blood alcohol test results to be introduced over objections based on claims that the blood sample tested was not obtained in a manner that complied with the Implied Consent Law, ORS 483.634 et seq.
The separate felony and misdemeanor charges brought against defendant in this case were for the same offense under the three-part test of State v. [562] Brown, 262 Or 442, 448, 497 P2d 1191 (1972). See, State v. Leverich, 14 Or App 222, 511 P2d 1265, Sup Ct review allowed (1973). However, unlike in Brown and Leverich, in this ease jeopardy never attached on the misdemeanor charge which was dismissed in the district court on the prosecutor’s motion. Thus, the double jeopardy guarantee was no bar to trial on the negligent homicide charge.
Mrs. McMurtry testified that she and defendant had lived together intermittently in Idaho, that she had a child by defendant in Idaho, and that she at least occasionally used the name Mrs. Stover. While her testimony is somewhat equivocal, it is capable of the interpretation that defendant and Mrs. McMurtry regarded themselves as husband and wife while living in Idaho. Defendant did not testify about his relationship with Mrs. McMurtry. Assuming but not deciding that this evidence was sufficient to establish a common law marriage under Idaho law, Mrs. McMurtry could nevertheless testify in this case because of OES 139.-320, which states:
“* * * [I]n all cases of personal violence upon either [spouse] by the other or of personal violence or other unlawful act committed against any minor child of either or both of the parties, the injured party, husband or wife, shall he allowed to testify against the other * *
Finally, we hold the blood sample tested for alcohol content was obtained in compliance with the Implied Consent Law.
Investigating officers at the accident scene observed a number of beer cans in defendant’s car and detected the odor of beer on defendant’s breath. While defendant was en route to the hospital in an ambulance, the officers radioed ahead and requested hospital per[563] sonnel to obtain a sample of defendant’s blood to test for alcohol content. Defendant was conseions at the hospital. A lab technician told defendant he was going to take a blood sample, and proceeded to do so. Defendant did not testify; the only testimony about the taking of the blood sample came from the lab technician, who stated:
“Q [By the prosecutor] Okay. Did you tell Mr. Stover that you in fact were going to take a blood sample from him?
“A Yes, I did.
“Q Did you request his permission at all or just tell him?
“A No. We just told him.
* * # %
“Q Okay. Did Mr. Stover say anything?
“A Yes!
“Q What did he say?
“A He says, ‘Give me a break.’
“Q Did he say anything else?
“A No.
*
“Q [By defense counsel] What did this [i.e., defendant’s statement] indicate to you?
“A That he probably knew what we were taking the blood for.
“Q Would it indicate that he didn’t want you to take some blood?
“A Probably so.
“Q And you didn’t request any more permission from him, then, and you just went ahead and took the sample?
“A That is correct.”
OBS 483.636 provides:
“Nothing in OBS 483.634 is intended to, in lieu of a request for and administration of a breath test, [564] 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.”
In State v. Greenough, 7 Or App 520, 491 P2d 630 (1971), Sup Ct review denied (1972), we held the Implied Consent Law did not prohibit taking a blood sample from a person who was unconscious when the police had probable cause to believe he had been driving under the influence just before the accident that rendered him unconscious. In reaching that conclusion we interpreted ORS 483.636 in conjunction with the rest of the Implied Consent Law and concluded the “expressly consents” phrase in ORS 483.636 means, in effect, “unless expressly refuses.” In State v. Annen, 12 Or App 203, 504 P2d 1400, Sup Ct review denied (1973), we held that ORS 483.636 did prohibit blood alcohol test results being introduced in evidence when the blood sample tested had been taken over a driver’s express refusal.
In this ease, the trial court heard lengthy arguments concerning the effect of Greenough and Annen. Applying those cases to the foregoing testimony, the trial court was entitled to conclude that defendant did not unequivocally refuse to submit to the taking of a blood sample. "While the testimony may indicate defendant was reluctant to submit to a blood test, Annen only holds that an express refusal to submit prohibits proceeding with a blood test. Thus, this case is distinguishable from Annen.
Defendant also complains that the blood sample used in the test in question was not obtained 'in compliance with ORS 483.640, which provides:
“In conducting a chemical test of the blood, only [565] a duly licensed physician or a person acting under his direction or control may withdraw blood or pierce human tissues.”
The obvious purpose of OES 483.640 is to insure that only persons who are medically trained and competent will withdraw blood for chemical testing.