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Allen v. State4/2/2002
e; and (3) the blood sample was obtained "solely in the context of DWUI" and "no other charges were contemplated against the defendant (e.g., no mention of careless driving, no facts to support a greater charge than DWUI, such as vehicular homicide)." (Emphasis in original.) In Van Order, this Court upheld the admissibility of a blood sample in Van Order's "trial for negligent homicide," for if "'the factual situation gave rise to a charge of vehicular homicide or the potential for such a charge, [the implied consent] statute would have no applicability. A blood test may be taken incident to an arrest for such a crime and may be admissible without regard to the Implied Consent Law.'" Van Order, 600 P.2d at 1058 (quoting Chastain, 594 P.2d at 461 n.4) (emphasis in original).
[ ] The implied consent statute does not apply to the circumstances of appellant's case because when appellant's blood was drawn, the facts "gave rise" to charges, or the potential for charges, other than those defined by Wyo. Stat. Ann. § 31-5-233 (LexisNexis 2001). The evidence Officer Schell obtained regarding appellant's driving prior to the collision, the manner in which the collision occurred, the extent of the Finks' injuries, and the evidence associated with appellant's intoxication certainly implicated an aggravated assault and battery *fn3 charge and, considering the extent of Mr. Fink's injuries, the potential for an aggravated vehicular homicide charge. See Nowack v. State, 774 P.2d 561, 563-66 (Wyo. 1989) and Van Order, 600 P.2d at 1058-59.
[ ] Accordingly, we conclude that the blood test was admissible in appellant's trial for aggravated vehicular homicide. It is not necessarily "important that we decide whether or not [a] defendant was arrested in a formal sense" to evaluate its admissibility in this context because a warrantless body search may be conducted even "'in spite of the fact that the person searched is not formally under arrest'" when (1) sufficient probable cause exists to support a formal arrest; (2) the character of the search is highly unintrusive; and (3) the evidence sought will be forever lost absent the search. Van Order, 600 P.2d at 1058-59 (citing Cupp, 412 U.S. 291 and quoting State v. Oevering, 268 N.W.2d 68, 73 (Minn. 1978)).
[ ] Aside from briefly describing the Cupp decision and merely stating that the circumstances of appellant's case do not meet these criteria, appellant does not otherwise present cogent argument or cite to pertinent authority on the decision's application to this case. Nevertheless, the referenced facts established sufficient probable cause for a formal arrest (i.e., aggravated assault and battery). Further, "[b]lood testing is of a routine and unobtrusive character" and appellant does not argue that the procedures used to procure the blood sample were unreasonable or improper. Van Order, 600 P.2d at 1059. *fn4 Finally, the evidence of appellant's blood alcohol concentration would have been "forever lost" absent the search, as the "presence of alcohol in the blood is evanescent and disappears readily with the passage of time." Buckles v. State, 830 P.2d 702, 710 (Wyo. 1992); Van Order, 600 P.2d at 1059. We remain mindful that these standards must be stringently enforced to avoid serious Fourth Amendment abuses in the form of warrantless pre-arrest investigatory searches. Van Order, 600 P.2d at 1059.
FAILURE TO APPOINT SUBSTITUTE COUNSEL
[ ] Appellant asserts that the district court's failure to appoint him substitute counsel violated his rights under the Sixth Amendment to the United States Constitution. Appellant contends that he demonstrated "good cause" justifying the appointment of new counsel at various stages of the proceedings in that
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