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MERCER v. STATE6/24/1974
manslaughter. Provided further that when the death of any person ensues within one 11 year as a proximate result of injury received by the driving of any vehicle in reckless, willful or wanton disregard of the safety of others, the person so operating such vehicle shall be deemed guilty of involuntary manslaughter."
We are unable to find in the record any proof to show that the proximate cause of the head-on collision with decedent's vehicle resulted from appellant's driving of his vehicle in reckless, willful or wanton disregard of the safety of others. There is no proof as to the lane of travel in which the collision with the trailer occurred. Since a conviction cannot be sustained upon speculation and conjecture, Ayers v. State, 247 Ark. 174, 444 S.W.2d 695 (1969), it follows that the trial court erred in overruling appellant's motion for a directed verdict.
POINT II. Since the alleged error in refusing to give appellant's requested instruction upon misfortune or accident will not necessarily arise upon the same evidence on a new trial, we need not reach that issue on this appeal.
POINT III. The record shows that the investigating officer at the scene of the collision requested that blood be drawn from appellant and an alcohol test run. The record also shows that appellant was taken to the hospital immediately after the accident where he spent several weeks recuperating from the injuries he received in the collision. The blood sample taken showed an alcoholic content of .15% of one percent.
To suppress this evidence appellant makes two contentions. The first is that it amounts to an unlawful search and seizure. Our legislature recognizes that one who drives an automobile on the highways of this state gives an implied
consent to the taking of such tests, Ark. Stat. Ann. 75-1045 (Repl. 1957). A number of other states have similar laws. The validity of such laws was upheld in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Consequently, we find no merit in the contention.
Appellant's next contention is that the evidence should be suppressed because he was not arrested before the sample was taken as required by Ark. Stat. Ann. 75-1045 (Repl. 1957). We find no merit in this contention. The record clearly shows that the officer saw enough at the scene of the collision to warrant an immediate arrest of appellant for driving while intoxicated. Since appellant admits that his condition at the time was such as to require hospitalization and that he remained therein for several weeks, it would appear that because of the officer's benevolence, he should be estopped from asserting that an arrest was a prerequisite to the taking of the blood sample. Furthermore, it would be absurd and ridiculous to hold that an officer would have to be so inhumane as to invariably arrest a person teetering on the brink between life and death before his blood alcohol content would be admissible in evidence. On the whole record, we cannot say that the trial court erred in not suppressing the evidence.
Reversed and remanded for new trial.
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