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State v. Shepherd10/23/1992
The opinion of the court was delivered by: 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 [21-711](1), in Case No. CRF-87-6060, in the District Court of Oklahoma County. The trial court sustained the appellee'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 [22-1053].
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 [47-751] -753 [47-753]. 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 [22-190], which requires that, " 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, " here must be an intent to arrest by the officer and an understanding by the arrested 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 [47-753] is constitutional. It has long b
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