Submitted: January 17, 2013.
Lincoln County Circuit Court. 091147. Charles P. Littlehales, Judge.
Peter Gartlan, Chief Defender, and Kristin A. Carveth, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
John R. Kroger, Attorney General, Anna M. Joyce, Solicitor General, and Shannon T. Reel, Assistant Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Nakamoto, Judge, and De Muniz, Senior Judge.
[260 Or.App. 584] 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 P.3d 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. 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 [260 Or.App. 585] that 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 P.3d 145 (2009) ( Machuca I ), rev'd on other grounds, 347 Or. 644, 227 P.3d 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 Constitution  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) [260 Or.App. 586] about the consequences of refusing to submit to a blood test. Id. at 240-42 (relying on State v. Newton, 291 Or. 788, 636 P.2d 393 (1981), overruled in part on other grounds by State v. Spencer, 305 Or. 59, 750 P.2d 147 (1988)). We also rejected the state's argument that exigent circumstances authorized the warrantless seizure and search of the defendant's blood ...