Submitted September 27, 2012
Deschutes County Circuit Court. MI092355. Barbara Haslinger, 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 Joanna L. Jenkins, Assistant Attorney General, filed the brief for respondent.
Before Wollheim, Presiding Judge, and Nakamoto, Judge, and Edmonds, Senior Judge.
[261 Or.App. 12] WOLLHEIM, P. J.
Defendant appeals his conviction of one count of driving while under the influence of intoxicants (DUII), ORS 813.010, assigning error to the trial court's denial of his motion to suppress. Defendant argues that the trial court erred in admitting evidence related to his performance of verbal field sobriety tests because those tests were testimonial and compelled in violation of the self-incrimination clause of Article I, section 12, of the Oregon Constitution. For the following reasons, we affirm.
We state the facts consistently with the trial court's findings of historical fact, provided that they are supported by constitutionally sufficient evidence in the record, and we assess independently whether those findings support the trial court's legal conclusion. State v. Ehly, 317 Ore. 66, 75, 854 P.2d 421 (1993). If the trial court did not make express findings, we will presume that the court found facts consistent with its ultimate conclusion. State v. Stevens, 311 Ore. 119, 127, 806 P.2d 92 (1991).
Officer Kirk was on patrol when he saw defendant driving a car at approximately 1:30 a.m. Kirk decided to randomly run defendant's license plate through dispatch, which then reported that defendant's registration tags were expired. At that point, Kirk turned on his overhead lights [261 Or.App. 13] and pulled defendant's car over. When he approached defendant's driver's side window and explained to defendant why he had been stopped, Kirk began to suspect that defendant may be impaired by alcohol. Kirk noticed that, while he was talking to defendant, defendant's eyes were watery and that an odor of alcohol was coming from the car, but he could not tell whether the odor was coming from defendant or his passenger. Kirk asked defendant if he had been drinking, and defendant replied that his passenger had been drinking but that he had not.
Kirk then asked defendant if he would mind stepping out of his car to perform some field sobriety tests, and defendant agreed. Kirk first administered the horizontal gaze nystagmus (HGN) test, an eye examination developed to detect intoxication. The officer observed nystagmus, which is rapid involuntary eye movement, and six out of the six possible " clues" indicating intoxication. Afterward, Kirk asked defendant to perform the walk-and-turn test, but defendant refused to perform that test because he said that he had a bad back.
Shortly thereafter, Officer Majetich arrived to take over the investigation. Majetich was working a special shift for the sole purpose of detecting and apprehending DUII drivers. Majetich approached defendant, who was leaning against the rear of his car, and asked him why he would not perform the
field sobriety tests. Defendant told Majetich that he would not perform the tests because he had been working all day and was tired. Majetich noticed that defendant had bloodshot and watery eyes, slurred speech, and an odor of alcohol emitting from his breath. Majetich explained to defendant that the field sobriety tests were not physically demanding and asked again if he would ...