State v. Wieboldt

320 P.3d 597, 260 Or. App. 583, 2014 WL 256758, 2014 Ore. App. LEXIS 81
CourtCourt of Appeals of Oregon
DecidedJanuary 23, 2014
Docket091147; A146806
StatusPublished
Cited by1 cases

This text of 320 P.3d 597 (State v. Wieboldt) 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. Wieboldt, 320 P.3d 597, 260 Or. App. 583, 2014 WL 256758, 2014 Ore. App. LEXIS 81 (Or. Ct. App. 2014).

Opinion

ORTEGA, P. J.

Defendant, who was convicted of driving under the influence of intoxicants (DUII), ORS 813.010, appeals the judgment of conviction, contending that the trial court erred in denying his motion to suppress the results of his urinalysis because his consent to take the test was not valid and exigent circumstances did not otherwise justify the warrantless seizure and search of his urine. We affirm, concluding that, in light of the Supreme Court’s holding in State v. Moore, 354 Or 493, 318 P3d 1133 (2013), defendant voluntarily consented to the seizure and search of his urine even though he consented after he had received the statutory implied consent warnings required by ORS 813.100(1), ORS 813.130, ORS 813.131, and ORS 813.132 about the economic harm and loss of privileges that would result if he refused.

The relevant facts are undisputed. Officer Sites, responding to a citizen complaint that defendant was driving and “highly intoxicated,” located defendant in his car in a parking lot. Defendant informed Sites that he had just been released from the hospital and was taking pain killers and muscle relaxants. Defendant had difficulty maintaining his balance, his eyes were watery, and his speech was slurred. Sites arrested defendant after he failed field sobriety tests and, upon arriving at the county jail, Sites advised defendant of his rights under Oregon’s implied consent law and the adverse consequences of refusing to submit to a breath test, blood test, or urine test by reading “Section I” of the “rights and consequences” section of the “implied consent form” prepared by the Driver and Motor Vehicle Services Division (DMV) of the Oregon Department of Transportation.1 Of particular importance to this case, the warnings given by Sites informed defendant that if he refused to submit to a test, (1) “evidence of the refusal * * * may be offered against you,” (2) his license would be immediately suspended and he would be subject to a suspension [585]*585that is “substantially longer” than the suspension for failing the test, and (3) he would be “subject to a fine of at least $500 but no more than $1,000.” Defendant agreed to submit to a breath test, which exhibited a blood alcohol content (BAC) of 0.0 percent. Deputy Boys, a Drug Recognition Evaluator, evaluated defendant and concluded that he was impaired from a narcotic analgesic and a central nervous system depressant. Sites read “Section II” of the implied consent form, which includes additional statements of the rights and consequences related to the refusal to submit to a urine test. Defendant agreed to provide a urine sample. Defendant’s urine sample contained hydromorphone — a Schedule II controlled substance.

The trial court denied defendant’s motion to suppress the results of his urinalysis, and defendant was subsequently convicted of DUII after a jury trial. Defendant appeals, contending that his consent to provide a urine sample was involuntary and that the state failed to demonstrate that exigent circumstances justified the warrantless seizure and search because it “presented no evidence concerning the rate at which the controlled substance at issue is eliminated from the body.” We need not decide if exigent circumstances justified the warrantless seizure and search because we conclude that defendant consented to the seizure and search of his urine.

On appeal, defendant relies on our decision in State v. Machuca, 231 Or App 232, 218 P3d 145 (2009) (Machuca I), rev’d on other grounds, 347 Or 644, 227 P3d 729 (2010) (Machuca II), to advance his argument that he did not voluntarily consent to provide a urine sample. In Machuca I, we reversed the trial court’s denial of the defendant’s motion to suppress evidence of his BAC after he consented to a blood draw. 231 Or App at 245. We concluded that the defendant’s consent was involuntary under Article I, section 9, of the Oregon Constitution2 because the consent was procured through a threat of economic harm and loss of privileges. Id. at 240. That is, the defendant consented after receiving the statutory implied consent warnings under ORS 813.130(2) [586]*586about the consequences of refusing to submit to a blood test. Id. at 240-42 (relying on State v. Newton, 291 Or 788, 636 P2d 393 (1981), overruled in part on other grounds by State v. Spencer, 305 Or 59, 750 P2d 147 (1988)). We also rejected the state’s argument that exigent circumstances authorized the warrantless seizure and search of the defendant’s blood because the state failed to prove that a warrant could not have been obtained within a reasonable time to secure the evidence. Id. at 246-47.

The Supreme Court reversed Machuca I, concluding that exigent circumstances authorized the blood draw without a warrant. Machuca II, 347 Or at 657. In doing so, the Supreme Court did not address our analysis of the voluntariness of the defendant’s consent to the blood test. In State v. Moore, 247 Or App 39, 46, 269 P3d 72 (2011) (Moore I), rev’d, 354 Or 493, 318 P3d 1133 (2013) (Moore II), we adhered to, and readopted our reasoning in Machuca I that consent obtained after the defendant has received the statutory implied consent warnings is involuntary.

As noted, on appeal, defendant relies on Machuca I to support his argument that the statutory implied consent warnings are coercive as a whole. He specifically attacks the warnings related to economic harm and loss of privileges as particularly coercive. Defendant also argues that the warning that evidence of his refusal to submit to a test may be offered against him rendered his consent involuntary as a matter of law because that warning “threatened to punish defendant if he exercised his constitutional right to refuse the officer’s request for a warrantless seizure and search of his urine.” That is, defendant maintains that, in the absence of a warrant, he has the constitutional right to refuse to give a urine sample, and that the state may not use the assertion of that constitutional right as substantive evidence of his guilt. Accordingly, defendant asserts that providing him with the “constitutionally defective warning that his refusal to give a urine sample would be admissible at trial as evidence of his guilt rendered his subsequent decision to consent involuntary, as a matter of law.”

During the pendency of this appeal, the Supreme Court decided Moore II, which controls the outcome of this [587]*587appeal. In Moore II, the court concluded that, contrary to our holding in Machuca I, an officer’s reading of the statutory rights and consequences of refusing to submit to blood, breath, or urine tests does not render the defendant’s consent involuntary. 354 Or at 503.

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Related

State v. Geren
329 P.3d 785 (Court of Appeals of Oregon, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
320 P.3d 597, 260 Or. App. 583, 2014 WL 256758, 2014 Ore. App. LEXIS 81, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wieboldt-orctapp-2014.