366 P.3d 1171
Or. Ct. App.2016Background
- Defendant drove erratically, twice swerved onto a sidewalk and struck pedestrians near a high school; two victims later died and one suffered serious injuries.
- At the scene officers asked basic questions, then asked defendant to sit in a patrol car; she answered questions about medication and consented to blood/urine tests; later a DRE officer conducted most (9/12) DRE steps and a blood draw was taken.
- Defendant made various statements at the hospital and in jail; she was Mirandized before some later questioning but disputed suppression of earlier statements.
- Toxicology: urine positive for lorazepam, cyclobenzaprine, and bupropion metabolite; initial blood showed lorazepam and bupropion metabolite (no cyclobenzaprine in blood).
- Charged with two counts first-degree manslaughter and one count second-degree assault (each requiring recklessness manifesting "extreme indifference to the value of human life"), plus DUI and reckless endangerment.
- Trial court admitted most statements and DRE-derived testimony, denied judgment of acquittal; jury convicted. On appeal court affirmed suppression rulings and most evidentiary rulings but reversed manslaughter and assault convictions due to an erroneous jury instruction and remanded for resentencing on remaining counts.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument | Held |
|---|---|---|---|
| 1. Suppression — Were pre-Miranda/on-scene questions "compelling" under OR Const art I, §12 or custodial under Miranda? | Questions were brief, non-custodial, done to separate defendant from crowd; no Miranda required; later DRE statements not fruit of illegality. | Kinyon placed defendant in patrol car, asked incriminating questions without warnings; statements should be suppressed and later statements derived therefrom. | Denied suppression: on-scene questioning not "compelling" or custodial; later statements admissible except one elicited after detective revealed a death (that one suppressed). |
| 2. Sufficiency — Could a rational juror find "extreme indifference to the value of human life" beyond a reasonable doubt? | Evidence of impairment, repeated dangerous driving (including driving onto sidewalk into crowd), and post-accident conduct supported extreme-indifference verdict. | Evidence showed mere recklessness or impairment; post-accident concern and cooperation undermine finding of extreme indifference. | Affirmed denial of judgment of acquittal: a rational juror could find extreme indifference from choice to drive while impaired and repeated highly dangerous conduct. |
| 3. Jury instruction — Did the court correctly define "extreme indifference to the value of human life"? | Instruction merely explained extreme indifference displays lack of concern for social/legal responsibility and listed factors; no reversal warranted. | Instruction misstated law by allowing conviction based on mere lack of concern for social/legal duties rather than a specific, heightened indifference to the value of human life. | Reversed manslaughter and assault convictions: instruction misstated law and likely prejudiced jury by conflating ordinary recklessness or general social/legal indifference with the higher mental state required. |
| 4. Admissibility of DRE evidence — Could parts of an incompletely administered 12‑step DRE protocol be admitted? | Components can be admitted if each has proper foundational proof of reliability and officer qualification; full 12‑step completion not required for admission of admissible parts. | Incomplete DRE protocol is not scientifically valid and thus inadmissible; opinions based on incomplete protocol lack foundation. | Affirmed: court properly allowed individual components and expert opinions after foundation; incomplete overall protocol did not require exclusion of every component. |
Key Cases Cited
- State v. Boone, 294 Or. 630 (Ore. 1983) (explains "extreme indifference to the value of human life" as heightened recklessness and compares to ordinary reckless driving)
- State v. Roble-Baker, 340 Or. 631 (Or. 2006) (factors for "compelling" circumstances under Oregon Constitution art I, §12)
- Miranda v. Arizona, 384 U.S. 436 (U.S. 1966) (Miranda custodial-interrogation rule)
- California v. Beheler, 463 U.S. 1121 (U.S. 1983) (custody analysis for Miranda purposes)
- State v. O'Key, 321 Or. 285 (Or. 1995) (scientific-evidence admissibility and foundational requirements)
- State v. Sampson, 167 Or. App. 489 (Or. Ct. App. 2000) (DRE protocol recognized as scientific when properly completed)
- State v. Rombo, 250 Or. App. 186 (Or. Ct. App. 2012) (individual components of incomplete DRE may be admissible if properly founded)