State v. Girod

Court of Appeals of Oregon

State v. Girod

263 P.3d 1113, 245 Or. App. 642, 2011 Ore. App. LEXIS 1288

CourtCourt of Appeals of Oregon

DecidedSeptember 21, 2011

Docket09CR0798; A144502

StatusPublished

This text of 263 P.3d 1113 (State v. Girod) 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. Girod, 263 P.3d 1113, 245 Or. App. 642, 2011 Ore. App. LEXIS 1288 (Or. Ct. App. 2011).

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Opinion

*643 PER CURIAM

In this prosecution for driving under the influence of intoxicants (DUII), the state appeals from the trial court’s suppression of a breath test result. In reliance on our opinion in State v. Machuca, 231 Or App 232, 218 P3d 145 (2009), rev’d, 347 Or 644, 227 P3d 729 (2010), the trial court held that defendant had not voluntarily consented to the test and that there were no exigent circumstances that would justify a warrantless seizure of defendant’s breath sample. We agree with the state that in light of the Supreme Court’s opinion reversing this court in Machuca and this court’s opinion in State v. Allen, 234 Or App 363, 228 P3d 606 (2010), the trial court erred in excluding the breath test results and the order suppressing the evidence must be reversed.

Officer Kirk stopped defendant for the offense of reckless driving, and it is undisputed on appeal that he immediately thereafter developed probable cause to believe that defendant had committed the offense of DUII. Under the Supreme Court’s opinion in Machuca, when an officer has probable cause to arrest a person for a crime involving the blood alcohol content of the suspect, “the evanescent nature of a suspect’s blood alcohol content is an exigent circumstances that will ordinarily permit a warrantless blood draw[.]” 347 Or at 657. In Allen, we applied the holding of Machuca to a breath test. 234 Or App at 364. We conclude for that reason that the trial court erred in granting defendant’s motion to suppress the breath test.

Reversed and remanded.

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*643 PER CURIAM

In this prosecution for driving under the influence of intoxicants (DUII), the state appeals from the trial court’s suppression of a breath test result. In reliance on our opinion in State v. Machuca, 231 Or App 232, 218 P3d 145 (2009), rev’d, 347 Or 644, 227 P3d 729 (2010), the trial court held that defendant had not voluntarily consented to the test and that there were no exigent circumstances that would justify a warrantless seizure of defendant’s breath sample. We agree with the state that in light of the Supreme Court’s opinion reversing this court in Machuca and this court’s opinion in State v. Allen, 234 Or App 363, 228 P3d 606 (2010), the trial court erred in excluding the breath test results and the order suppressing the evidence must be reversed.

Officer Kirk stopped defendant for the offense of reckless driving, and it is undisputed on appeal that he immediately thereafter developed probable cause to believe that defendant had committed the offense of DUII. Under the Supreme Court’s opinion in Machuca, when an officer has probable cause to arrest a person for a crime involving the blood alcohol content of the suspect, “the evanescent nature of a suspect’s blood alcohol content is an exigent circumstances that will ordinarily permit a warrantless blood draw[.]” 347 Or at 657. In Allen, we applied the holding of Machuca to a breath test. 234 Or App at 364. We conclude for that reason that the trial court erred in granting defendant’s motion to suppress the breath test.

Reversed and remanded.

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Bluebook (online)

263 P.3d 1113, 245 Or. App. 642, 2011 Ore. App. LEXIS 1288, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-girod-orctapp-2011.

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