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State v. Shepherd10/23/1992
d when the party regains consciousness, an officer at the door, a note or notice on the door together with some possible notice in the room; in other words, some overt act by the police to as best possible notify the accused or family of the arrest.
As noted above, the U.S. Supreme Court has basically decided two cases in this area, the one the court cites as Schmerber, but one more direct in point case is Breithaupt. Schmerber would apply where we have the conscious driver; Breithaupt would apply to the unconscious driver. It is my opinion that this Court has answered the arrest portion of the case when we have effectively held that arrest occurs when ones liberty of movement is interrupted. Castellano v. State, 585 P.2d 361 (Okl.Cr. 1978). The court in that case adopted the arrest standard as outlined in corpus juris. 6A C.J.S. Arrest § 2. Therefore, I would hold that if the trial court finds that there was, as the standard says, any act which indicates an intention to take a person into custody and subject the person to arrest, then the trial court could find that the arrest did occur and this would be sufficient for the taking of the blood. Therefore, I would reverse the holding of the magistrate.
LUMPKIN, Vice Presiding Judge, dissenting.
I join in the dissent of Judge Johnson. In addition, this Court has already adopted guidelines for the trial courts to utilize in determining the admissibility of this type of evidence. State v. Wood, 576 P.2d 1181 (Okl.Cr. 1978), set forth the criteria which should be utilized in this case. The Court fails to even acknowledge this prior authority in forming its answer to the questions presented. I also disagree with the Court's discussion of the constitutionality of 47 O.S.Supp. 1989 § 753 [47-753]. I find that Section 753 is constitutional on its face. See also, Harris v. State, 773 P.2d 1273, 1274, 1277 (Okl.Cr. 1989) (Lumpkin, J., Specially Concurring) for discussion of constitutionality of Oklahoma's Implied Consent law.
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