concurring-in-part-and-dissenting-in-part">LUMPKIN, Vice-Presiding Judge,

concurring in part/dissenting in part:

I concur in the Court’s determination that a second trial was not precluded by double jeopardy prohibitions. However, I cannot agree with the Court’s analysis of the admissibility of the blood test and reversal of the conviction. The Court is correct in its determination that the operative statutory word in 47 O.S.1981, § 11-902 and 47 O.S.1981, § 751, et seq. is “arrest”. However, the Court does not address or reconcile the provisions of 47 O.S.1981, § 751(D), and State v. Wood, 576 P.2d 1181, 1183 (Okl.Cr.1978), with the facts of this case. In addition, it is apparent that the language of Section 11-902 contemplates the arrest of a person as a result of a traffic stop for operating or being in actual physical control of an automobile with the test being administered within two (2) hours of that event.

The Appellant in this case was at times unconscious and other times incoherent on the night of the wreck. The two (2) hour period for purposes of a blood-alcohol analysis must be construed in relation to the time of the offense to which it is relevant. How can an officer effect an “arrest” if a person is injured, unconscious, and undergoing in-patient medical care? What more could the officer have done to preserve the evidence and protect the rights of the Appellant than was done by Trooper Jackson in this situation? While I *1066agree with the judicial requirements of strict construction of our statutes, I find it difficult to apply both the requirement of arrest with the statutory authorization to extract a blood-alcohol sample from an unconscious person and use that evidence if the requirements of Woodare met. The decision by the Court creates more questions than it answers. Since the Court neither distinguishes or overrules Wood, I must dissent to the determination of the inadmissibility of the blood test and the reversal of the conviction in this case.

Citation profile

Relationships

How this case has been treated — in progress