dissenting.
In my view the majority’s interpretation of ORS 487.820 as applied to ORS 487.815(1) is contrary to the intent of the legislature and inconsistent with the most recent Supreme Court case discussing this point, State v. Stover, 271 Or 132, 531 P2d 258 (1975), reversing 14 Or App 559, 513 P2d 537 (1973). Stover was a negligent homicide case arising prior to the passage of ORS 487.820. There the defendant claimed that evidence of a blood alcohol test should have been excluded because a blood sample was taken without his express consent, which violated the Implied Consent Law.
The court held that violation of the consent provisions of the Implied Consent Law required suppression of the blood test results, citing State v. Annen, 12 Or App 203, 504 P2d 1400 (1973) (also dealing with the consent provisions of the law). The court noted, however, that the enactment of ORS 487.820 following the Annen case would change the result in consent cases arising after passage of that statute. The court stated:
"In 1973 the legislature passed a statute which requires the suppression of chemical test results for alcohol taken in violation of the Implied Consent Law only in prosecution for driving under the influence of intoxicating liquor, ORS 483.992(2) [now ORS 487.540], "ORS 483.648 [now ORS 487.820] provides:
" 'Implied consent law not to limit introduction of evidence in certain proceedings. The provisions of the implied consent law, ORS 483.634 to 483.646 [now ORS 487.805 to 487.815, 487.825 to 487.835], except subsection (3) of ORS 483.634 [now ORS 487.805] and ORS 483.642 [now ORS 487.545], shall not be construed by any court to limit the introduction of otherwise competent, relevant evidence in any civil action, suit or proceedings or to any criminal action *184other than a violation of subsection (2) of ORS 483.992 [now ORS 487.540] or a similar municipal ordinance in proceeding under ORS 482.540 to 482.560.’
"In cases other than driving under the influence of intoxicating liquor constitutional search and seizure standards will govern the admissibility of the results of chemical tests for alcohol. See Schmerber v. California, 384 US 757, 86 S Ct 1826, 16 L Ed 2d 908 (1966); State v. Osburn, 13 Or App 92, 95, 508 P2d 837 (1973).” 271 Or at 147, n 10.
The court then went on to say:
"In State v. Annen, 12 Or App 203, 207, 504 P2d 1400 (1973), as in the instant case, the violation of the Implied Consent Law involved the consent provisions of the law.
"However, in State v. Fogle, 254 Or 268, 459 P2d 873 (1969), this court dealt with the situation where the state failed to introduce any evidence that the equipment used to conduct the breath test had been tested for accuracy by the State Board of Health as required by ORS 483.664(2)(c) [now ORS 487.815(2)(c)]. Thus our decision in Fogle was aimed at the very trustworthiness and competency of the test results. The ruling in Fogle would not be affected by the passage of ORS483.648[now ORS 487.820]: 'The provisions of the implied consent law shall not be construed by any court to limit the introduction of otherwise competent, relevant evidence. * * *’ (Emphasis added.)” 271 Or at 147, nil. (First emphasis supplied.)
Thus, the Implied Consent Law does not act as an additional restriction upon the admissibility of evidence in non-DUII cases insofar as constitutional consent standards are concerned.1 It does, however, under ORS 487.815, remain as the standard of competency of scientific evidence of intoxication.
While the court’s language in Stover is dicta, it is consistent with the legislative history of ORS 487.820 which indicates that the statute was drafted for the sole purpose of avoiding the rule promulgated in State v. Annen, supra, thereby permitting the introduction of evidence of intoxication in non-DUII cases regardless of whether the defendant consented. Minutes, *185Senate Committee on the Judiciary, April 16 and May 14, 1973; Minutes, House Judiciary Committee, June 22, 1973.
Further, the court’s statement in Stover is a reasonable interpretation of the statutory scheme covering driving while intoxicated. For example, ORS 487.540(l)(a) provides:
"(1) A person commits the offense of driving while under the influence of intoxicants if he drives a vehicle while:
"(a) He has .10 percent or more by weight of alcohol in his blood as shown by chemical analysis of his breath, blood, urine or saliva made under ORS 487.805 to 487.815 and 487.825 to 487.835 * * * ”
As already noted, ORS 487.545(2) provides that a person with a blood alcohol level of .10 percent or greater is under the influence of intoxicating liquor. It would be redundant to say that ORS 487.815, which expressly applies to ORS 487.545 in its entirety, is limited by ORS 487.820 to prosecutions for driving under the influence of intoxicants because ORS 487.540(l)(a) already provides for the limitations of ORS 487.815.
The only reasonable interpretation of ORS 487.815 is that the legislature intended that it be read into and qualify ORS 487.545 in all cases and that the application of ORS 487.820 be limited to the consent provisions of the Implied Consent Law. There is no rational basis for concluding that the legislature could have intended that the competency and trustworthiness of evidence in a prosecution for driving under the influence of intoxicants would be determined more strictly than in a case of manslaughter or negligent homicide. There are very substantial interests to be protected in a prosecution for manslaughter or negligent homicide, and the stringent requirements of ORS 487.815 were intended to apply to those cases as well as DUII prosecutions.
For all of the foregoing reasons I respectfully dissent.