State v. Burshia

120 P.3d 487, 201 Or. App. 678, 2005 Ore. App. LEXIS 1249
CourtCourt of Appeals of Oregon
DecidedSeptember 28, 2005
DocketC00-08-50188; A122790
StatusPublished
Cited by1 cases

This text of 120 P.3d 487 (State v. Burshia) 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. Burshia, 120 P.3d 487, 201 Or. App. 678, 2005 Ore. App. LEXIS 1249 (Or. Ct. App. 2005).

Opinion

WOLLHEIM, J.

Defendant was charged with driving under the influence of intoxicants. ORS 813.010(l)(b). The state appeals from the trial court’s order suppressing evidence of defendant’s blood alcohol content (BAC) analysis, based on a lack of probable cause. ORS 138.060(l)(c). Because the trial court suppressed the evidence of defendant’s BAC, it also suppressed the results from the Drug Recognition Expert (DRE) protocol. The state argues that there was ample evidence constituting probable cause that defendant was driving under the influence of intoxicants. Accordingly, the state asserts, neither the BAC evidence nor the DRE evidence should have been suppressed. We review for errors of law, State v. Ehly, 317 Or 66, 75, 854 P2d 421 (1993), and reverse.

The facts are undisputed. At around 2:30 a.m., Sergeant Hansen observed defendant’s car weaving and being driven in the wrong direction of traffic. Hansen called for a marked patrol car to conduct an investigation for a possible driving under the influence of intoxicants (DUII) and stopped defendant. When Hansen approached the driver’s side window, he observed defendant conversing with the passenger, “[a]nd it wasn’t until I — I announced my presence by speaking with her that she actually realized I was up at her door. It rather startled her.” Hansen described defendant’s behavior as “[q]uick frequent actions as far as being fidgety, unable to sit still, arms and legs, her head. * * * [S]he had bloodshot eyes and rapid speech and from what I observed inside the cab, it looked like somebody who was under the influence of a [central nervous system] stimulant.”

A short time later, Officer Dalby arrived at the scene and assumed responsibility for the investigation. Dalby testified that defendant’s eyelids were “droopy” and that she “appeared very disoriented,” but that she denied having had anything to drink. Dalby performed field sobriety tests on defendant. Although defendant passed the series of tests, Dalby observed that she performed the tests “very rapidly,” and that speed was part of the tests.

Dalby read defendant her Miranda rights, and placed her under arrest for “Driving Under the Influence of [681]*681Intoxicants and/or drugs.” While defendant was in the back of Dalb/s patrol car, Hansen informed defendant that he suspected her of being under the influence of methamphetamine. After an initial denial, “[defendant] was quick, though, to admit she’d taken about four hits of meth from a pipe about an hour earlier.”

After the arrest, Dalby transported defendant to the Gresham Police Department, where defendant was to undergo DRE testing. On arrival at the police station, Dalby observed that defendant was still exhibiting signs of intoxication. Dalby then read defendant an implied consent form, and defendant consented to taking a breath test,1 which was “standard procedure.” The test revealed a 0.00 percent BAC. Dalby then turned the investigation over to the drug recognition evaluator.

Defendant was indicted for driving under the influence of a controlled substance (DUII-CS). ORS 813.010(l)(b). Defendant filed a motion to suppress the results of the breath test. Defendant argued that because the officers did not believe that defendant was under the influence of alcohol, the officers lacked probable cause to perform a warrantless search of defendant’s breath for the presence of alcohol. Additionally, defendant argued that if the breath test evidence were excluded, then under State v. Sampson, 167 Or App 489, 6 P3d 543, rev den, 331 Or 361 (2000), the results of the DRE were inadmissable since the state could not prove that it performed all 12 steps of the protocol. The trial court agreed, granting defendant’s motion to suppress:

“And I’m going to agree with [defendant] that there is no authority to conduct a breath test for alcohol when they are — when they have probable cause to arrest only for DUI drugs. And without the breath test, the [DRE] evidence falls.
^ ^ ^ ^
“I think it’s ridiculous, but I’m led to it by the standard of law of this state that you cannot do a breath test without probable cause that there is alcohol in the system and that [682]*682she is under the influence of it and it’s impairing her driving.”

The state appeals from that ruling of the trial court.

On appeal, the state makes one assignment of error relating to the trial court’s grant of defendant’s motion to suppress the evidence of defendant’s BAC and the trial court’s ruling that, without that evidence, the DRE evidence is inadmissible. The state argues that the officers had probable cause to believe that defendant was driving under the influence of intoxicants, which includes both alcohol and controlled substances, and that a breath test would produce evidence of that crime.2 In response, defendant repeats her arguments that the officers lacked probable cause to conduct a breath test, and that without the evidence of her BAC, the DRE evaluation is inadmissable. We agree with the state that the officers had probable cause because defendant’s BAC is relevant evidence in a prosecution for DUII.

We begin our analysis with a review of the law regarding warrantless searches generally and breath tests in particular. Article I, section 9, of the Oregon Constitution protects , our citizens against unreasonable searches and seizures.3 A warrantless search and seizure is per se unreasonable absent an exception to the warrant requirement. State v. Snow, 337 Or 219, 223, 94 P3d 872 (2004). Subjecting a person to a breath test is a search and seizure that requires either a warrant or an exception to the warrant requirement. State v. Newton, 291 Or 788, 800-01, 636 P2d 393 (1981), overruled in part on other grounds by State v. Spencer, 305 Or 59, 750 P2d 147 (1988). However, warrantless breath tests have been upheld as long as there is both probable cause and exigent circumstances. Id. at 801. In Newton, the court held that because there was probable cause to believe that the defendant had committed the crime of DUII, and because of [683]*683the transitory nature of a person’s BAC, a breath test falls under the exigent circumstances exception to the warrant requirement. Id. Defendant’s arguments concern only the presence of probable cause to conduct the breath test. Our inquiry thus focuses on whether the police had probable cause to conduct the breath test.

“A warrantless search under exigent circumstances is lawful if based on probable cause to believe that evidence of a crime is likely to be discovered.” State v. Chambers, 147 Or App 626, 630, 938 P2d 793 (1997), rev den, 327 Or 82 (1998). Probable cause requires both an objective and subjective component. State v. Owens, 302 Or 196, 204, 729 P2d 524 (1986). “An officer must subjectively believe that a crime has been committed and thus that a person or thing is subject to seizure, and this belief must be objectively reasonable in the circumstances.” Id.

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120 P.3d 487, 201 Or. App. 678, 2005 Ore. App. LEXIS 1249, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-burshia-orctapp-2005.