State v. Stover , 14 Or. App. 559 ( 1973 )

THORNTON, J.,

specially concurring.

I concur in the result, but for the reasons stated in my dissenting opinion in State v. Annen, 12 Or App 203, 209, 504 P2d 1400, Sup Ct review denied (1973), I do not agree with that portion of the majority opinion which concludes that the Implied Consent Law applies under the facts of this case. The Implied Consent Law applies only to “* * * a person under arrest for driving a motor vehicle while under the influence of intoxicating liquor * * ORS 483.634 (2). Inasmuch as defendant was not placed under arrest for driving while under the influence of intoxicating liquor prior to the withdrawal of his blood for the chemical test, the provisions of the Implied Consent Law do not apply.

I would affirm on the authority of Breithaupt v. Abram, 352 US 432, 77 S Ct 408, 1 L Ed 2d 448 (1957), and Schmerber v. California, 384 US 757, 86 S Ct 1826, 16 L Ed 2d 908 (1966), rather than the Implied Consent Law. There was ample evidence to sustain the trial judge’s finding that the investigating officer had probable cause to require defendant to submit to a blood alcohol test.