State v. Barber

Court of Appeals of Oregon

State v. Barber

949 P.2d 1236, 151 Or. App. 84, 1997 Ore. App. LEXIS 1480

CourtCourt of Appeals of Oregon

DecidedOctober 22, 1997

DocketCR96-50147; CA A94803

StatusPublished

Cited by1 cases

This text of 949 P.2d 1236 (State v. Barber) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Barber, 949 P.2d 1236, 151 Or. App. 84, 1997 Ore. App. LEXIS 1480 (Or. Ct. App. 1997).

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Opinion

*86 HASELTON, J.

The state appeals from a pretrial order suppressing the results of field sobriety tests defendant performed during a lawful stop for driving under the influence of intoxicants. ORS 813.010. The trial court suppressed that evidence based on its conclusion that “an officer must have probable cause and exigent circumstances prior to asking a subject to perform field sobriety tests” and its determination that the requesting officer lacked subjective probable cause. In so holding, the court expressly rejected the state’s contention that “defendant’s consent allows an officer to administer field sobriety tests without probable cause.” Given that disposition, the trial court made no findings, and rendered no determination, as to whether defendant did, in fact, voluntarily consent to perform the tests.

The trial court’s legal premise was incorrect. In State v. Ramos, 149 Or App 269, 272, 942 P2d 841 (1997), we held that “consent is a valid exception to the warrant requirement and that probable cause is not a necessary prerequisite to asking a defendant for consent to perform field sobriety tests in the context of a DUII stop.” (Emphasis in original.) On this record, there remain unresolved factual questions pertaining to whether defendant’s performance of the tests was voluntary. Accordingly, we reverse and remand for the trial court to address those matters. Compare Ramos, 149 Or App at 273 (concluding “on the undisputed evidence in the record” that defendant’s consent was voluntary).

Reversed and remanded.

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*86 HASELTON, J.

The state appeals from a pretrial order suppressing the results of field sobriety tests defendant performed during a lawful stop for driving under the influence of intoxicants. ORS 813.010. The trial court suppressed that evidence based on its conclusion that “an officer must have probable cause and exigent circumstances prior to asking a subject to perform field sobriety tests” and its determination that the requesting officer lacked subjective probable cause. In so holding, the court expressly rejected the state’s contention that “defendant’s consent allows an officer to administer field sobriety tests without probable cause.” Given that disposition, the trial court made no findings, and rendered no determination, as to whether defendant did, in fact, voluntarily consent to perform the tests.

The trial court’s legal premise was incorrect. In State v. Ramos, 149 Or App 269, 272, 942 P2d 841 (1997), we held that “consent is a valid exception to the warrant requirement and that probable cause is not a necessary prerequisite to asking a defendant for consent to perform field sobriety tests in the context of a DUII stop.” (Emphasis in original.) On this record, there remain unresolved factual questions pertaining to whether defendant’s performance of the tests was voluntary. Accordingly, we reverse and remand for the trial court to address those matters. Compare Ramos, 149 Or App at 273 (concluding “on the undisputed evidence in the record” that defendant’s consent was voluntary).

Reversed and remanded.

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949 P.2d 1236, 151 Or. App. 84, 1997 Ore. App. LEXIS 1480, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-barber-orctapp-1997.

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