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Perry v. State3/3/1977
The opinion of the court was delivered by: BRETT, Judge.
Appellant, William Robert Perry, herein-after referred to as defendant, was charged by information with the crime of Driving Under the Influence of Intoxicating Liquor, in violation of 47 O.S. 1971 § 11-902 [47-11-902](a), second and subsequent offense. The defendant was tried in a two-stage proceeding before a jury in the Oklahoma County District Court. The defendant was convicted and sentenced to one (1) year imprisonment and a fine of One Thousand Dollars ($1,000.00), pursuant to 47 O.S. 1971 § 11-902 [47-11-902](c). From said judgment and sentence, defendant has perfected this timely appeal.
The facts of the case pertinent to this appeal are summarized as follows:
Oklahoma City Police Officer Jim Fitzpatrick observed the defendant commit what the officer believed to be a traffic violation. He stopped the defendant's truck on North May Avenue, north of West Reno. The officer testified that the defendant had an odor of an alcoholic beverage about his person and that the officer discovered a partially consumed beer can on the floorboard of the truck. Once advised that he was under arrest and of his rights, defendant chose to submit to a chemical test of his blood to determine its alcohol content. At St. Anthony Hospital following the proper statutory procedure, blood was withdrawn from the defendant for this purpose. The defendant was given a sample also. The State's sample was analyzed by Melvin R. Hett, a forensic chemist for the Oklahoma City Police Department. Mr. Hett testified that he held permit no. 14 issued by the Board of Chemical Tests for Alcoholic Influence. He testified that he used an approved method and determined that the blood sample showed a blood alcohol level of .11% by weight. The defendant took his sample to the Medical Arts Laboratory to be analyzed. Mr. Thomas M. Reynolds, a clinical chemist for the laboratory, testified that he used an approved method and determined the alcohol content of the blood. However, before Mr. Reynolds could testify as to what his findings were, the prosecution voir dired him concerning the permit to analyze blood for alcohol content required by 47 O.S. 1971 § 759 [47-759]. When Mr. Reynolds testified that he did not have a permit, the prosecution's objection to the admission of the test results was sustained. The defendant made an offer of proof which was overruled. The defendant was convicted by the jury and this appeal followed.
The defendant's only assignment of error is that the trial court erred in excluding the testimony of defendant's witness, merely because the witness did not have a permit issued by the Board of Chemical Tests for Alcoholic Influence. In order to consider this appeal, we must examine the statutes concerning chemical tests in the Motor Vehicle Laws of the State of Oklahoma.
Title 47, Oklahoma Statutes, 1971, § 752 provides for the withdrawal of blood specimens, and provides that the person tested may receive a sample, withdrawn at the same time. The statute further provides that the person tested may take his sample to a qualified chemist for analysis. Section 759 purports to regulate what persons are qualified to conduct such a test. Title 47, Oklahoma Statutes, 1971, § 759 reads:
"There is hereby established the Board of Chemical Tests for Alcoholic Influence, to be composed of the Dean of the University of Oklahoma School of Medicine, or his designate who shall receive his appointment in writing, as Chairman, and the State Commissioner of Public Safety, the Director of the State Bureau of Investigation, the State Commissioner of Public Health,
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