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State v. Moore

Supreme Court of Oregon, En Banc

December 12, 2013

STATE OF OREGON, Petitioner on Review,
v.
JESSE JAMES MOORE, Respondent on Review.

Argued and submitted September 6, 2012; resubmitted January 7, 2013.

On review from the Court of Appeals.[*] (CC 091131; CA A145081)

Timothy A. Sylwester, Assistant Attorney General, Salem, argued the cause for petitioner on review. With him on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.

Peter Gartlan, Chief Defender, Office of Public Defense Services, Salem, argued the cause and filed the brief for respondent on review.

BALMER, C. J.

In this criminal case, defendant was charged with criminally negligent homicide after he allegedly drove while under the influence of intoxicants and struck another vehicle, killing one of its occupants. During the investigation of the crime, a police officer read defendant the statutory implied consent warnings as required by ORS 813.100(1) and ORS 813.130, [1] and defendant agreed to provide blood and urine samples. Before trial, defendant moved to suppress the test results from those samples, arguing that his consent was involuntary because it was obtained after he had been warned of the legal consequences he would suffer if he refused consent. The trial court, considering itself bound by the Court of Appeals decision in State v. Machuca, 231 Or.App. 232, 218 P.3d 145 (2009) (Machuca I), rev'd on other grounds, 347 Or 644, 227 P.3d 729 (2010) (Machuca II), concluded that defendant's consent was involuntary. Accordingly, the trial court suppressed the blood and urine evidence because it was obtained in violation of defendant's right under Article I, section 9, of the Oregon Constitution to be free from unreasonable searches and seizures.[2] The state filed an interlocutory appeal of that pretrial order, and the Court of Appeals affirmed the trial court's ruling. State v. Moore, 247 Or.App. 39, 269 P.3d 72 (2011). We allowed the state's petition for review.

As we explain below, we conclude that defendant's consent was voluntary; the police officer did not unconstitutionally coerce defendant's consent to the test of his blood and urine by reading him the statutory implied consent warnings. We therefore reverse the decision of the Court of Appeals and the ruling of the trial court.

The following facts are undisputed for purposes of this proceeding. On September 12, 2008, Oregon State Trooper Farrar witnessed an accident while driving southbound on Highway 101 in Tillamook County. He observed defendant drift over the center line and collide head-on with another vehicle. The collision injured defendant and killed a woman in the other vehicle. A few minutes later, Farrar conducted a brief interview with defendant at the scene of the collision, while defendant was receiving medical treatment before being transported to the hospital. During that conversation, after noticing that defendant was dazed and his speech was slow, Farrar began to suspect that defendant had been driving under the influence of intoxicants.

An hour or two later, Farrar went to the hospital and again interviewed defendant as he recovered in the emergency room. By that time, Farrar believed that he had probable cause to arrest defendant for DUII. Farrar provided defendant Miranda warnings and also advised him of his rights under Oregon's implied consent law and the adverse consequences of refusing to provide samples of his breath, blood, or urine. He did so by reading the warnings set out on an "implied consent" form prepared by the Driver and Motor Vehicle (DMV) Services Division of the Oregon Department of Transportation. That form generally tracks the statutorily required warnings of ORS 813.130, which we discuss below. Farrar then asked defendant to consent to provide a sample of his blood and urine. Defendant orally consented, stating, "Of course, " and provided the requested samples. Those samples apparently disclosed the presence of controlled substances.[3]

As noted, defendant was charged with criminally negligent homicide. Before trial, defendant moved to suppress evidence obtained through the warrantless seizure of his blood and urine, arguing that no exigent circumstances existed to justify the warrantless search and that his consent was coerced and not voluntary.[4] The trial court granted the motion. The trial court found that there was no evidence in the record concerning the evanescent nature of drugs in defendant's system that might require his blood or urine to be tested promptly. There also was no evidence that Farrar could not have expeditiously obtained a warrant. For those reasons, the court ruled that the state had failed to prove that exigent circumstances existed to justify the warrantless seizure of defendant's blood and urine.[5] The trial court then considered whether defendant's consent to the seizure of his blood and urine was voluntary. The court noted that, apart from the fact that Farrar had read defendant the statutorily required warnings of the consequences of refusing to submit to blood and urine tests, there was no indication that defendant's consent had been coerced. Accordingly, the trial court stated:

"Absent the effect of the implied consent warnings, the Court would find that the Defendant's consent to the blood draw was given voluntarily."

However, the court concluded, it was bound by the Court of Appeals' holding in Machuca I that implied consent warnings are inherently coercive, because they induce consent through a threat of economic harm and loss of privileges resulting from the failure to consent. The trial court observed that, although this court had reversed the Court of Appeals decision in Machuca I, it had done so based on the state's argument that exigent circumstances -- the dissipation of the blood-alcohol evidence -- justified the warrantless search. In reversing on that basis, this court in Machuca II expressly declined to determine whether a defendant's consent after receiving the implied consent warnings was valid under Article I, section 9, of the Oregon Constitution. For that reason, the trial court concluded, the Court of Appeals decision on voluntariness was binding.

The state appealed the trial court order suppressing evidence, arguing that defendant validly consented to the taking of his blood and urine. The state did not challenge the trial court's ruling that there was no evidence of exigent circumstances. The Court of Appeals affirmed, concluding that this court's decision in Machuca II "did not call into question, much less abrogate, our analysis [in Machuca I] concerning defendant's consent." 247 Or.App. at 45. The court acknowledged that its opinion in Machuca I "is not literally controlling precedent, " id. at 46, given that this court reversed it on other grounds, but the Court of Appeals nonetheless applied the doctrine of stare decicis and affirmed:

"[Because] the facts of this case * * * are materially indistinguishable from those in Machuca I, we conclude that defendant's consent was involuntary. Here, defendant consented after receiving the implied consent warnings. As we reasoned in Machuca I, 'a consent to search obtained in that fashion is coerced by the fear of adverse consequences and is ineffective to excuse the requirement to obtain a search warrant.' 231 Or.App. at 240. Thus, the trial court did not err in granting defendant's motion to suppress."

Id. at 46-47 (footnote omitted).

Before we turn to the parties' arguments in this case, we set out a brief description of Oregon's implied consent law. As part of the state's effort to deter persons from driving after drinking, ORS 813.010 creates the crime of driving under the influence of intoxicants. That statute provides, in part:

"(1) A person commits the offense of driving while under the influence of intoxicants if the person drives a vehicle while the person:
"(a) Has 0.08 percent or more by weight of alcohol in the blood of the person as shown by chemical analysis of the breath or blood of the person made ...

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