State v. Langevin

715 P.2d 1355 (1986)

78 Or.App. 311

STATE of Oregon, Respondent, v. Michael Craig LANGEVIN, Appellant.

146,798; CA A36402.

Court of Appeals of Oregon.

Argued and Submitted January 27, 1986.

Decided March 26, 1986.

Reconsideration Denied May 9, 1986.

Paul J. DeMuniz, Salem, argued the cause for appellant. With him on brief were Robert R. Trethewy and Garrett, Seideman, Hemann, Robertson & DeMuniz, P.C., Salem.

Jonathan H. Fussner, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on brief were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.

Before BUTTLER, P.J., and WARREN and ROSSMAN, JJ.

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 P.2d 385 (1979); State v. Calderon, 67 Or. App. 169, 678 P.2d 1245, rev. den. 297 Or. 272, 683 P.2d 92 (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 P.2d 996 (1983); State v. Westlund, 75 Or. App. 43, 705 P.2d 208, rev. allowed 300 Or. 332, 710 P.2d 146 (1985).

Reversed and remanded for a new trial.

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