STATE v. ENOCH

LANGTRY, J.

Defendant appeals from conviction of driving while under the influence of alcohol. The only question is whether the results of a test for blood-alcohol content can be used against defendant.

Defendant was driving alone when he became involved and was seriously injured in a one-car accident. He was removed by ambulance to a hospital before being seen by the investigating officer. At the hospital a blood sample was taken from defendant for medical purposes in connection with possible treatment of his injuries. When the officer arrived there defendant was still in too serious condition to be interviewed, but the officer asked if a blood sample could be taken. He was given the one that already had been taken (obviously without defendant's knowledge or consent) and upon testing, it showed .30 percent blood alcohol. Defendant was then charged with DUIL.

Defendant contends that under ORS 483.636, a part of the implied consent law, his consent must have been first obtained before the blood sample could be used for proof of his intoxication.

The district attorney correctly points out that the implied consent law (ORS 483.634 et seq.) is inapplicable to the facts of this case. There was no arrest or knowledge on the part of the officer of reasonable grounds therefor. In his investigation, he simply came upon the evidence taken by a third person, and when it was checked out it created a case against and cause for arrest of defendant. Taking of blood is a search. State v. Osburn, 13 Or. App. 92, 508 P.2d 837 (1973). The state and federal constitutions protect against unreasonable searches and seizures by police and their agents; if an independent private citizen finds evidence and turns it over to the police, the evidence is legitimate. State v. Walker, 19 Or. App. 420, 528 P.2d 113 (1974); State v. Becich, 13 Or. App. 415, 509 P.2d 1232, Sup Ct review denied (1973); State v. Bryan, 1 Or. App. 15, 457 P.2d 661 (1969).

Affirmed.