292 P.3d 666
Or. Ct. App.2012Background
- Defendant was stopped for traffic violations, later arrested for DUII and reckless driving after failing field sobriety tests.
- At the police station she consented to a breath test, which showed 0.16 BAC; she had previously requested an independent blood test.
- Officer Gotchy informed her she could request a blood test after the breath test, and she did not repeat the request.
- Defendant moved to suppress the breath-test results arguing denial of a reasonable opportunity to obtain a independent blood test under ORS 813.150.
- Trial court found defendant did not request a blood test after the breath test and thus police afforded a reasonable opportunity; conviction affirmed on appeal.
- Statutory context: ORS 813.150 allows an independent test upon request but does not require officer to advise of a right; burden on defendant to show denial of reasonable opportunity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does ORS 813.150 require a defendant to request an independent test after a breath test to trigger a reasonable opportunity? | Defendant argues there was a denial of reasonable opportunity after earlier request. | Defendant contends police ignored her prior request and denied the opportunity. | No; test opportunity arises upon request, not strictly after breath test; insufficiency shown only if denied. |
| Who bears the burden to prove denial of a reasonable opportunity to obtain an independent test? | State would bear burden if constitutional right to counsel analogy applied. | Defendant argues burden shifts to state once prima facie request shown. | Burden remains on defendant to show denial of reasonable opportunity; statutory right is not a constitutional right. |
| Did Gotchy’s conduct or the subsequent booking amount to hindrance/prevention of a blood test? | Defendant asserts police continued booking to prevent test. | State argues no affirmative hindrance; no evidence of time or effect of booking. | No denial; absence of evidence of hindrance to booking or testing procedure; affirmed denial of suppression. |
Key Cases Cited
- State v. Snuggerud, 153 Or App 300 (Or App 1998) (after-test opportunities can satisfy the statute; no obligation to transport after a request)
- State v. Darlin, 122 Or App 172 (Or App 1993) (defined 'reasonable opportunity' as not being hindered by police conduct)
- State v. Hilditch, 36 Or App 435 (Or App 1978) (analogous to denial of independent blood test when funds or access were unreasonable)
- State v. Matviyenko, 212 Or App 125 (Or App 2007) (police not obliged to remind of prior request; counsel analogy not controlling)
- State v. Spencer, 305 Or 59 (Or 1988) (right to counsel before breath test; burden on state to prove reasonable opportunity applies by analogy)