*1 August 27,2008, and remanded reversed resubmitted en banc June Submitted 317) (347 September petition for review allowed November OREGON, STATE OF Plaintiff-Respondent, MACHUCA, THOMAS GREGORY Defendant-Appellant. Court County
Multnomah Circuit 050647097; A133362 *2 233-a Defender, Division, Services Gartlan, Legal Chief
Peter Eiva, Defender, Public Office of Public and Travis Deputy Services, filed the brief appellant. Defense General, Williams, Mary H. Hardy Myers, Attorney *3 General, Moan, and Rolf C. Assistant Attorney Solicitor General, the brief for respondent. filed Brewer, Edmonds, Landau, Judge,
Before Chief Schuman, Rosenblum, Haselton, Armstrong, Ortega, Sercombe, Judge. Senior Judges, Riggs,
SERCOMBE, J. J.,
Haselton, dissenting.
233-b *4 SERCOMBE, J. guilty plea, con- defendant was a conditional After (DUII). driving of intoxicants the influence
victed of assigns denial ofhis the trial court’s error to He ORS 813.010. suppress content his blood alcohol to evidence motion Defendant a blood draw. consented to after he obtained argues in violation obtained draw was the blood Oregon For the rea- Constitution.1 9, of the I, Article section explained and remand. below, we reverse sons suppress for a motion to the denial of review
We factual find the trial court’s are of law and bound errors supported ings in the record. evidence are sufficient (1993). Ehly, Thus, we 66, 74-75, 854 P2d 317 Or State v. primarily from the trial this case the salient facts in take findings. court’s single-car accident on in a
Defendant was involved injuries Parkway and was Portland; he suffered Naito transported emergency hospital room facilities (OHSU). University Oregon Officer Health and Science approximately scene, arrived at the first officer on the Oelke, minutes later and took Ladd arrived a few a.m. Officer 1:52 investigation. By a.m., Ladd concluded that 2:10 over probable had com- that defendant there cause believe to OHSU to inves- of DUII. Ladd then went mitted the crime tigate further.2 hospital personnel allowed him arrival,
After Ladd’s
entry
through
emergency
facilities
a locked
enter the
room
“emergency
by security staff to
he
directed
door, and
“lying on a hos-
room,
alone in the
room
Defendant was
two.”
very strong
receiving
pital
smell
care.” There was
bed
some
provides:
Oregon Constitution
Article
section
of the
people
persons,
right
in their
of the
to be secure
“No law shall violate
search,
seizure;
houses,
effects, against
and no
papers,
unreasonable
or
and
affirmation,
cause, supported by
upon probable
oath or
warrant shall issue but
searched,
thing
describing
place
particularly
to be
be seized.”
alleged intoxicated
that Ladd “learned of defendant’s
The trial court found
finding
supported by sufficient evi
driving
impairment
That
at 2:10 a.m.”
(1993)
(binding
Ehly,
effect of
behalf of 813.110. rule, report “(d) department required period of time Within a prepare to be department and cause to the taken under this section action delivered to 813.120, along with report in ORS department a as described suspend. copy of intent to permit of the notice license the confiscated “(4) person, time at the this section discloses If bloodtest under being person’s that constitutes test, blood alcohol in had a level of of the 813.300, person’s intoxicating liquor under ORS the influence police and the subject suspension under ORS 813.410 driving privileges are days the date of arrest report department *6 to the within officer shall person test.” failed the blood the responsi- rights implied and requires information about ORS 813.130 Transportation. by Department ORS prepared the form to be in the bilities 813.130(2)provides: substantially rights consequences as shall be and “The information about follows: “(a) Oregon, a crime in and Driving of intoxicants is under the influence penalties 813.100 shows subject if a test under ORS person to criminal the is person refuses a If the person the influence of intoxicants. the is under that test or person. against may fails, the or failure also be offered of the refusal evidence “(c) 813.100, person’s the person a test under ORS refuses or fails If the charge for driv- suspended. of a criminal driving privileges The outcome will be suspension. the The sus- ing will not affect the influence of intoxicants longer person substantially refuses a test. pension if the will be “(d) 813.100 person a breath test under ORS refuses a test or fails If the permit permit, or will be taken Oregon the license an driver license and has driving currently and, person full valid immediately have unless the does person. driving permit temporary to the privileges, will be issued a “(e) 813.100, person the will not be person a test under ORS If the refuses year, days, possibly hardship permit for one eligible for at least 90 and for a qualify person may possibly person’s driving for depending record. The on the test, per- depending days person on the hardship permit if the fails a in 30 a driving son’s record. 813.100, “(f) person person under ORS the refuses a breath test If the $1,000. subject not more than $500 fine of at least to a 813.100, taking have a reason- “(g) the will After a test under ORS blood alco- opportunity, upon request, chemical test for for an additional able by expense qualified performed person’s a individ- at the own content to be hol choosing.” person’s ual of the and, already addition, hospital test on defendant had conducted blood In the OHSU, determined defendant’s that the test had Ladd was advised when he left to .274. alcohol content be blood charged driving
Defendant was with reckless suppress by He moved DUII. to evidence obtained hospital, arguing officer that it obtained in viola- Oregon tion Article section ofthe Constitution to Fourth Amendment the United States Constitution. concluding: motion, trial court denied the proving, pre- “The state burden established its ponderance evidence, ofthe that the defendant’sconsentto analyzed given voluntarily have his blooddrawn and totality onthe ofthe based meet its circumstances.The state didnot respect prof- burden, however, with the second exception requirement, fered to the warrant i.e. exis- probable exigent tence of cause and circumstances. More specifically, sought prove state failed that the evidenceit wouldhave been sacrificed the time it wouldtake the officersto obtain search warrant.” ruling, plea on Based defendant entered conditional guilty, reserving right appeal trial court’s denial of suppress. appeal his motion to This followed. appeal, arguments
On defendant advances three support assignment argues First, his of error. he his hospital warrantless arrest in the room was unlawful and hospital that all of the evidence obtained room should suppressed, including be evidence of the results of the blood physical appearance, test, his Next, and his admissions. prove defendant contends that the state did not that he vol- untarily consented blood test so as to excuse the need finally, *7 Third, a search warrant. and he asserts that prove necessary state failed to a that warrant was not due exigent specifically circumstances, that evidence of his intox- by ication would have been lost the time a warrant argument obtained. We each address in turn.
First, defendant submits that his arrest was unlaw entering ful because an arrest warrant was needed before emergency explains treatment room. Defendant that he had protected privacy hospital setting a analogous interest in the room enjoyed argument
to that
in one’s home. That
is
controlled
our
Cromb,
decision in State v.
Or
185 P3d
rev den,
That same result obtains Ladd by hospital had treatment area staff. Defendant defendant’s by controlling right no to restrict access to his treatment area might present police there. area was whether officers be hospital emergency not room and was associated with provided conclude that to defendant his sole use. We reject argument controlling is with- Cromb and lawful, out further discussion. Defendant’s arrest failing suppress trial did err in to treatment room evidence court during hospital Ladd’s in the observations the arrest. particular question
The next
is whether
evidence—
with defen
defendant’s blood—was seized
dant’s constitutional
accordance
rights.
provides
section
Article
right
people
“[n]o
law shall violate the
be secure
persons,
papers,
against
houses,
effects,
unreason
their
* * *.”
sam
search,
able
or seizure
“The extraction of blood
ple
police both search of
a seizure
person’s
Milligan,
State
of an ‘effect’—the
blood.”
(1988).
659, 664,
searches and sei
Warrantless
proves
per
an
zures
exception
se unreasonable unless the state
are
requirement.
Bridewell,
State v.
to warrant
(1988). The
231, 235,
239 exigent alternatively consent and because it fell within the exception requirement. warrant circumstances argues his was coerced and Defendant that consent regarded as a free exercise of his will. The consent cannot be according coerced, defendant, it was because was obtained penal- after was that he substantial he warned would incur recognized ties if he did not implied The trial court consent. by proclaimed consent ORS 813.100 “cannot be regarded as a free exercise of will.” The trial court concluded voluntary, however, that consent after defendant’s was reviewing the that factors contribute to determination of voluntariness. reviewing person’s
In
voluntariness of
“[w]e
search,
to a
holding
are
bound
the trial court’s ultimate
* **
[but]
as to voluntariness,
assess anew whether
the facts suffice to meet constitutional standards.” State v.
(1991).
proper
Stevens,
119, 135,
311 Or
P2d
806
92
The
test
totality
whether,
for voluntariness
under the
is
ofthe circum
given
stances,
consent was
an
of free
or
act
will was
express
implied.
coercion,
the result of
or
Dimeo,
State v.
304
(1987);
474,
Or 469,
The relevant factors be considered in (1) physical voluntariness consent include whether (2) weapons force threatened; was used or whether were dis (3) played; public; whether the consent was obtained in (4) gives subject whether the who consent was the (5) investigation; present; an the number of officers (6) atmosphere surrounding whether the the consent was (7) antagonistic oppressive; drug or whether or alcohol impaired ability knowing, use has the defendant’s to make a voluntary, intelligent Larson, choice.State v. (1996).
186, 198,
den,
rev
limitations on unreasonable searches and seizures did not
prevent
compelled
of blood
extraction
“over
refusal of
objection
lawyer.”
Newton,
hisof
vide a breath of whether lawyer regardless defendant calleda dant had refusedto defen- whether *10 the
submit to seizure. “** * right impliedby right No counselis the free- domfromunreasonable seizures.” Id. at 802.
Finally,
plurality
the Newton
determined that the
attorney
state need not allow consultation with an
before a
right
breath
I,
test under the Article
section
to counsel “in
prosecutions.”
all criminal
It concluded that
the criminal
prosecution only
commences
the time of the “formal
charge”
plurality
crime.
the
Justice concurred “in the result reached by by opinion the Tanzer, concurrence, however, J.” “holding right expressly questioned of a that the the ‘liberty’ attorney a constitutional to call an arrested the the Constitution of United Amendment of Fourteenth agreed Tongue Instead, Justice with the Id. at 813. States.” right prior to a with counsel breath to consult dissent statutory However, Justice in Id. at 813-14. test nature. Tongue not excluded evidence because of would have statutory violation. Id. at 814.5 light other factors dis- Thus, in of Newton (the just that defendant had been
cussed above facts injured arrested, accident, in a car and was under had been intoxicants), not consent was vol- influence of defendant’s untary purposes I, The trial for the ofArticle section 9.6 court denying suppress motion on basis erred in voluntarily test. consented to the blood defendant are to the
The dissent that we not bound con- asserts plurality the coercive clusion reached the Newton on con- (1) four the conclusion was reached in sent issue for reasons: majority opinion, Supreme plurality opinion, not a (2) the not to the Court; conclusion was essential result (3) court; the conclusion has not been relied on reached in (4) wrong. subsequent cases; the conclusion is (Haselton, dissenting). J., at 248-50 We share some of misgivings the dissent’s on the abstract correctness do conclusion reached in Newton. We not decide whether a ingredients if different result would obtain other were added present stew, factors in Newton and are that were 59, 74-75, Spencer, Supreme 750 P2d In State v. Court I, that, 11, holding Newton, concluding overturned its Article right section “under the right upon clause in an driver has the to counsel Article section arrested deciding request opportunity legal to a reasonable to obtain advice before whether case, accordingly sup to submit to a breath test.” Under the facts of the court pressed the results of the breath test. Id. at 76. inNewton, suspect time of the Under the statutes effect at the arrest and, declined, test, *11 suspect if a asked to consent to a breath blood test was or argues consequences was warned of the of refusal. state that Newton then The initially applies “only warnings given suspect [to] DUI[I] after a that are refuses to consent to a seizure ofhis breath or blood.” state relies on a distinction without case, immediately present following In the difference. defendant “consented” reading implied request law and the a blood draw. Ladd’s He consent, penalty told suffer if he the substantial he would failed to asked penalty. pre comply, and did so rather than risk further That scenario involves cisely Supreme addressed inNewton. the coerciveness Court e.g., case, before us in this consultation of a defendant granting with counsel before consent. eye,
However, we cannot turn a blind as the dissent suggests, by majority Supreme ato determination of the holding by Court that is labeled as a the court and is relevant by majority to the outcome reached and that has not distinguished, questioned, implicitly been overturned in subsequent opinions (Haselton, App of that court. 231 Or at 248-50 dissenting). plurality
J., First, the force of the opinion in I, quibbles Newton on Article 9, section issues is not dissi- pated by plurality a concurrence that with the on arising issues under I, Article section 11, and the different Tongue’s begins: Due Process Clause. Justice concurrence opinionby “Iconcurin the result reached Tanzer, question, holding right person however, J. I its ofa attorney ‘liberty’ arrested to call an is a constitutional under the Fourteenth Amendment of the Constitution of the United States. No such contentionwas made defen- agree right dant in this I case. that a arrested has a attorney, prepared to call an that such a but am not to hold at this time right ‘liberty’ is a constitutional under the Fourteenth Amendment.”
Newton,
Liggett Group, Inc.,
504, 521,
(1992)
505 US
112 S Ct
L120 Ed 2d 407
(plurality opinion).]
is,
opinion
part,
opinion
That
in
and,
of the Court
part,
opinion
plurality.
an
of the
courts,
In common with most other
we con-
that,
light
clude
expressed
separate
the views
concurring
in the
and dis-
senting opinions
Scalia,
entirety
Justices Blackmun and
of Justice
opinion
Stevens’s
holding
states the
of the Court.”
4, 135
(2009).
allowed,
29 n
P3d 409
rev
voluntary. present Those circumstances are not here.
But conclude, dissent, to as does that the coer- question cive effect of the disclosures is immaterial to the voluntary, whether defendant’s consent was because those compelled by gives disclosures are statute, an undue deter- equation. minative effect to that in factor the constitutional App (Haselton, dissenting). Legislative 231 Or J., 249-50 inquiries. choices have no such effect in other constitutional quite And, as said, we have Newton’s directive is to the con- trary. question turn,We then, to the of whether the blood test justified grounds. can be on alternative
Notwithstanding the ineffective consent to search justified proba seize, the blood test could be as based on necessity preserve diminishing ble cause and the to evi responds although dence intoxication. Defendant that, developed probable Ladd cause that he had DUII, committed telephonic the officer conceded that he could have obtained a argues search warrant in one hour. that, Defendant because eight elapsed one hour minutes between the time when probable cause arose and extracted, when the blood was a 8 Dinsmore, 432, 444-45, 116 App (2005), aff'd, But see State v. 200 Or P3d 226 (2006) 1, 147 (distinguishingNewton recognizing 342 Or P3d 1146 while the “coer law”); implied Trenary, 608, 612, cive effect of App State v. 114 Or 836 (1993) aff'd, P2d 739 (discussing application 316 Or consequences” policy implied “coerced fear of adverse consent law under Newton). sacrificing evi- been obtained without could have warrant agree follow, with the trial we that dence. For the reasons prove to this to meet its burden failed court that the state requirement. exception to the warrant discharge in burden, that In order for the state sample without a obtained admission of blood order to allow (1) police following: prove the state must warrant, a probable con that defendant’s blood cause believe had analysis alcohol, and that crime, i.e., tained evidence of (2) yield evidence; could that warrant would blood (3) sacrificing evidence; and without be obtained promptly was taken to a once defendant made extraction was Moylett, place could be made. State v. the extraction where (1992). 548-49, P2d 1329 probable cause investigation believe defendant Ladd had crime his at the scene. intoxicated based on only evidence would have dissi- issue is whether that The pated warrant. We
in time that it took to obtain search recently Kruse, 38, 42, 184 State observed (2008): P3d 1182 DUII, exigent may circumstances “In the context of probable have cause to arrest police when officers who exist situation which evidence suspect are confronted with a destroyed by the natural suspect’s intoxication will be during the time it takes secure a dissipation of alcohol warrant. *14 mean, however, that warrants are not
“That does not Roberts, 292, App Or required in DUII cases. In State 75 296, example, we held that the 706 564 may justify a warrantless potential destruction of evidence the entry suspect’s proves a home state that into ‘if not obtained a warrant arresting could have before officers ” suspect’s body dissipated.’ in the alcohol Roberts.) (Citation emphasis omitted; prove that case, this the state failed to a warrant In within a reasonable time could have been obtained expe that, his fact, In Ladd testified secure the evidence. as in as little time one rience, a could be obtained warrant was from defendant one hour and that the blood obtained developed eight probable after Ladd hour and minutes
247 cause.9 There no that Ladd could not have testimony was a obtained warrant the demands of immediate and nec- given essary light testimony tasks. In Ladd’s actual time developed that between when Ladd cause elapsed probable extracted, when the blood was the state was not relieved of its I, obtain a warrant under Article 9. The duty section to obtain warrant is not requirement excused mere fact that alcohol in the over dissipates bloodstream time. failed to
Because
state
meet its burden to prove
exigent circumstances
existed
that a voluntary con-
sent
to search
given,
unlawfully
was
seized evidence
Hall,
See State v.
should have
25,
been
Or
suppressed.
339
(2005).
Reversed and remanded.
HASELTON, J., dissenting.
The majority’s conclusion that defendant’s consent
invalid,
to the blood draw was
as
involuntary,
ultimately,
erroneously
on a
premised
single sentence in the plurality
Newton,
in State v.
opinion
788, 801,
In holding that defendant’s consent to the blood draw not voluntary, majority opinion concludes that the “determinative” consideration was that “the consent was procured a threat through of economic harm and loss of priv It was ileges. obtained only after defendant was given 813.130(2) warnings required by ORS about the conse quences of refusal to allow blood test.” 231 Or at 240. unique, The record in this case is and different facts could allow court exigency conclude of loss of evidence blood alcohol content excuses the need to obtain a warrant for that evidence under Article section and the Fourth particular suggest The precedential Amendment. facts in this case value opinion practical application this effect of the of Newton to the consent —and may be limited. issue — majority opinion circumstances, including that, referred to also other draw, the time defendant consented the blood he arrest and under the alcohol, injured shortly influence of and had been in the automobile accident *15 248 single ultimately predicated on a turn, is, in
That conclusion opinion: plurality the sentence in Newton “ solicited, the a seizure is person’s consent to ‘Where that he will suffer only being after warned consents refuses, resulting consent if he the penalty a substantial ” free of will.’ regarded as a exercise cannot be 801). (quoting App at Newton, 291 Or at 240-41 majority’s that statement as treatment of jurisprudentially immutably binding so, That is is erroneous. any practically, for of several reasons. opin- plurality in made First, that statement was jus- opinion, Supreme majority Three of the Court. ion, not a joined including author, Tanzer, in the the Justice tices, concurring,” Tongue, “specially plurality. Justice Newton opinion by “concurred] Tanzer, in the result reached the added), (emphasis any reference to J.,” Or at 813 without plurality opinion’s treatment of “consent.” concurring plurality’s “result,” Further, necessary Tongue implication, join in not, Justice plurality’s “holding” did respect That is so with to consent. plurality, because, context of the even within the Newton opinion’s to its was not essential that treatment consent suppressing the trial court had erred in viz., that result — plurality, after breath test. The results of voluntary— concluding that defendant’s consent was not suppression— that militated in determination favor of paragraph, proceeded, in next to conclude that the war- sample was, the defendant’s breath never- rantless seizure of theless, constitutionally probable valid under cause/ exception requirement. exigent circumstances the warrant plurality’s conclusion, the Newton Id. at 801-02. Given gratuitous. treatment years Supreme Newton, neither the In since gratui- plurality’s this has ever ratified the Court nor court conclusory It is treatment of consent. a barren tous given surprisingly, that the first two of those cir- before. 239-40. Not invariably present suspect to a draw cumstances are almost when consents blood hardly majority does treat those or the third is unusual —the breath test —and individually, collectively, as decisive. circumstances Indeed, branch. until no today, published opinion in past of the Newton has cited years aspect favorably plurality. *16 Newton
That is because unsurprising, plurality’s was, treatment of consent and is, wrong. According to the Newton merely a plurality, informing suspect of the statuto- rily of refusal is prescribed consequences impermissibly never “coercive.” that there enforce- upshot is can be an able consent constitutional when the purposes have police 813.100(1) 813.130(2).2 complied with ORS and ORS Even if the defendant consents, it is worthless as consti- expressly if the Newton plurality’s proposition Indeed, tutional matter.3 were taken it literally, preclude constitutionally would effec- tive consent even DUII counsel, consults with suspect after because the effect of “coercive” the statutorily prescribed warnings impermissibly would in suspect’s skew calculus determining whether to consent.
That is not the law.
a citizen
Informing
of statutorily
a matter
law
as
prescribed
that will
consequences
flow
not,
from a refusal
is
deemed,
and cannot be
impermissibly
coercive for constitutional purposes. Contrary to the Newton
dictum,
plurality’s unamplified
we and the Supreme Court
have
repeatedly reiterated
that an
principle
accurate
consequences
statement
lawful
is not coercive
respect
with
2
813.100(1) provides,
pertinent, that,
ORS
as
before “a
test
chemical
of the
breath,
person’s
person’s
person
or of
receiving
blood if
is
care in
medical
facility immediately
administered,
health care
after a motor vehicle accident” is
person requested
“the
consequences
rights
test
take the
shall be informed of
and
as described under ORS 813.130.”
813.130(2),
turn, prescribes
ORS
the content of the “information about
rights
consequences,” including
consequences
refusing
failing
a test
813.100, e.g., inculpatory
failure,
under ORS
use of the refusal or
automatic sus-
pension
and,
driving privileges,
refusal, impaired eligibility
in the case of
for a
hardship permit
exposure
$500
to fine of not
than
less
and not more than
$1,000.
3
incongruously
administering
Nevertheless —and somewhat
officer
—the
obligated,
statutory matter,
suspect’s willingness
would still be
to
aas
to confirm the
813.100(2)
(precluding
submit to the breath test or blood draw. See ORS
admin
person’s
istration of a “chemicaltest ofthe
breath or blood”if the
refuses the
request
being
consequences
rights
to submit after
“informed of
as described
813.130”);
Kirsch,
generally
App 67,
under ORS
see
State v.
215 Or
Smith v.
prin-
den,
analysis,
does,
if
if it
the state is “damned
it
damned
statutorily prescribed
convey
infor-
If
doesn’t”:
officers
813.100(1),
impermis-
it
mation, as mandated under ORS
is
sibly
they
they
and,
not,
if
do
have violated their
“coercive”—
beget
statutory
yet
would,
turn,
duties. The latter
another
statutorily pre-
irony:
convey
Because the failure to
suspect
consequences
to a breath
to a
who consents
scribed
give
suppression,
does
rise to
see State
test or blood draw
(2007),
251-52,
Bloom,
Landau, Schuman, JJ., in this dissent. *18 conclusion, not, not, Given that I need and do address whether the warrant- independently less seizure of probable defendant’s blood was lawful under the cause/exigent exception. note, however, I practical circumstances would consequence majority’s reasoning regard, 245-47, in that see 231 Or impossible long that —because it is actually to know at the outset how it will take to sample state, a blood prophylactic matter, obtain obligated or breath test —the as a would be virtually every administering case obtain a warrant before a breath drawing
test or blood.