State v. Fuller

287 P.3d 1147, 252 Or. App. 245, 2012 WL 3985724, 2012 Ore. App. LEXIS 1129
CourtCourt of Appeals of Oregon
DecidedSeptember 12, 2012
DocketCV090511; A147286
StatusPublished
Cited by3 cases

This text of 287 P.3d 1147 (State v. Fuller) 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. Fuller, 287 P.3d 1147, 252 Or. App. 245, 2012 WL 3985724, 2012 Ore. App. LEXIS 1129 (Or. Ct. App. 2012).

Opinion

BREWER, J.

In this driving under the influence of intoxicants (DUII) case, the state appeals a pretrial order suppressing the results of a urine test, obtained without a warrant, disclosing that defendant had ingested a variety of controlled substances. See ORS 138.060(1)(c) (state may appeal pretrial order suppressing evidence). The trial court suppressed that evidence, relying on this court’s decision in State v. Machuca, 231 Or App 232, 218 P3d 145 (2009) (Machuca I), rev’d on other grounds, 347 Or 654, 227 P3d 729 (2010) (Machuca II). Applying the Supreme Court’s partially overriding analysis in Machuca II, the trial court also rejected the state’s argument that the warrantless seizure of defendant’s urine was justified under the exigent circumstances exception to the warrant requirement of Article I, section 9, of the Oregon Constitution.1 We reverse and remand.

We take the facts from the trial court’s letter opinion. At 5:34 p.m. on October 28, 2009, Officer Christensen responded to a call regarding a hit and run crash at a grocery store. Witnesses had reported that a truck crashed into a parked car and then left the scene. While Christensen was en route to the store, two other officers went to the address of the registered owner of the truck. After viewing the damage to the parked car and talking to the witnesses, Christensen went to the address of the registered owner and met with defendant and the two officers. Defendant admitted that he had driven the truck to the grocery store, but denied that he had been involved in a crash.

During the interview, Christensen detected a moderate odor of alcohol emanating from defendant, and he noted that defendant seemed relaxed and that his movements were slow and lethargic. Defendant had trouble enunciating words, and he spoke slowly, with slurred speech, [247]*247and had bloodshot eyes. Defendant told Christensen that he had consumed two beers that afternoon, one at 2:00 and the other at 4:00. Defendant also told Christensen that he had taken an Oxycodone pill at 1:00 p.m.

From that interaction, Christensen concluded that he had probable cause to arrest defendant for DUII. Christensen asked defendant to perform voluntary field sobriety tests, and defendant agreed to do so. Defendant exhibited signs of impairment during each of the tests that Christensen administered. At 6:47 p.m., Christensen took defendant into custody for DUII, and, at 7:39 p.m., he began the observation period required before performing a Breathalyzer test. Christensen read defendant an “implied consent rights and consequences” statement, and defendant consented to the breath test at 8:00 p.m. The test indicated a blood-alcohol content of 0.0 percent.

After reviewing the results of the breath test, Christensen called for a drug recognition expert (DRE). That officer, Sergeant Weaver, arrived at 9:00 p.m. During the next 50 minutes, Weaver conducted the 12-step DRE protocol and noted that defendant exhibited signs of impairment. When asked, defendant again admitted that he had taken Oxycodone at 1:00 p.m. that day. From the first 10 steps of the DRE protocol, Weaver concluded that defendant was impaired by a central nervous system depressant and a narcotic analgesic. Weaver then asked defendant to consent to provide a urine sample for testing, which is the twelfth step of the DRE protocol. Weaver read defendant the “implied consent rights and consequences” statement, and defendant consented to give the sample. That sample later tested positive for Oxycodone.

After defendant was charged with DUII, he sought to suppress the urine sample, arguing that his consent had been unlawfully coerced under this court’s decision in Machuca I and that the search had not been justified by the exigent circumstances exception to the warrant requirement as elaborated by the Supreme Court in Machuca II. The state disagreed, arguing that our holding regarding the effect of the implied consent rights and consequences statement in Machuca I was erroneous, but that, nevertheless, there had [248]*248been an exigency that justified the warrantless seizure of defendant’s urine. The state argued that testimony from both the state’s and defendant’s experts at the suppression hearing regarding how controlled substances such as heroin and cocaine break down into metabolites in a person’s urine established that exigency. Because the trial court’s ruling relied on the holdings in Machuca I and Machuca II, it is useful to discuss those decisions at this point.

In Machuca I, we held that the DUII defendant’s consent to undergo a blood test was involuntary because, among other factors, the defendant consented only after she had been warned of punitive and economic consequences if she refused. Machuca I, 231 Or App at 237-42. We also rejected the state’s argument that exigent circumstances justified the warrantless seizure on the ground that alcohol dissipates in blood over time so that delaying the blood test while obtaining a warrant would result in the destruction of evidence. Id. at 245-47. We held that, because the evidence showed that the police could have obtained a warrant in less time than “the actual time that elapsed between when [the arresting officer] developed probable cause and when the blood was extracted,” the warrant requirement was not excused by exigent circumstances. Id. at 247.

In Machuca II, the Supreme Court reversed in part Machuca I. In doing so, the court expressly declined to reexamine this court’s decision that the defendant’s consent had been coerced. Machuca II, 347 Or at 657. Instead, the court focused on that portion of Machuca I dealing with exigent circumstances. In particular, the court rejected the proposition that, in order to establish exigency for the purpose of taking a warrantless blood sample, the state must prove that it could not have obtained a search warrant without sacrificing the evidence. Id. at 656. The court held:

“[W]hen probable cause to arrest for a crime involving the blood alcohol content of the suspect is combined with the undisputed evanescent nature of alcohol in the blood, those facts are a sufficient basis to conclude that a warrant could not have been obtained without sacrificing that evidence. It may be true, phenomenologically, that, among such cases, there will be instances in which a warrant could have been both obtained and executed in a timely fashion. The mere [249]*249possibility, however, that such situations may occur from time to time does not justify ignoring the inescapable fact that, in every such case, evidence is disappearing and minutes count. We therefore declare that, for purposes of the Oregon Constitution, the evanescent nature of a suspect’s blood alcohol content is an exigent circumstance that will ordinarily permit a warrantless blood draw of the kind taken here. We do so, however, understanding that particular facts may show, in the rare case, that a warrant could have been obtained and executed significantly faster than the actual process otherwise used under the circumstances. We anticipate that only in those rare cases will a warrantless blood draw be unconstitutional.”

Id. at 656-57. (Emphasis omitted.)

Here, the trial court first rejected the state’s argument that it should decline to follow

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Raymond
360 P.3d 734 (Court of Appeals of Oregon, 2015)
State v. Sullivan
333 P.3d 1201 (Court of Appeals of Oregon, 2014)
State v. Mazzola
317 P.3d 360 (Court of Appeals of Oregon, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
287 P.3d 1147, 252 Or. App. 245, 2012 WL 3985724, 2012 Ore. App. LEXIS 1129, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-fuller-orctapp-2012.