Argued and Submitted May 27, 2014
Hood River County Circuit Court. 110153CT. John A. Olson, Judge.
Joanna L. Jenkins, Senior Assistant Attorney General, argued the cause for appellant. With her on the briefs were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
David Sherbo-Huggins, Deputy Public Defender, argued the cause for respondent. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Before Sercombe, Presiding Judge, and Hadlock, Judge, and Mooney, Judge pro tempore.
[263 Or.App. 717] SERCOMBE, P. J.
The state appeals an order suppressing evidence resulting from the warrantless testing of defendant's urine. ORS 138.060(1)(c). The trial court, relying on our decisions in State v. Machuca, 231 Or.App. 232, 218 P.3d 145 (2009) ( Machuca I ), rev'd on other grounds, 347 Ore. 644, 227 P.3d 729 (2010), and State v. Moore, 247 Or.App. 39, 269 P.3d 72 (2011) ( Moore I ), rev'd, 354 Ore. 493, 318 P.3d 1133 (2013) ( Moore II ), adh'd to as modified on recons, 354 Ore. 835, 322 P.3d 486 (2014), concluded that defendant's consent to that testing was involuntary because it was obtained after he had received statutory implied consent warnings about the consequences he would suffer if he refused consent. On appeal, the state contends that, in
light of the Supreme Court's decision in Moore II, defendant's consent was voluntary and the trial court erred in suppressing the results of the urine test. We agree with the state and, accordingly, reverse and remand.
Defendant was pulled over for speeding and, ultimately, arrested for driving under the influence of intoxicants after he performed poorly on a number of field sobriety tests. At the jail, the arresting officer read defendant " the DMV Implied Consent Rights and Consequences Section 1 Paragraphs (a) through (i) out loud and verbatim," after which defendant agreed to take a breath test. That test indicated a blood alcohol content of 0.0 percent. The officer then " read [defendant] the DMV Implied Consent Rights and Consequences Section 2 Paragraphs (a) through (c) out loud and verbatim" and, thereafter, asked defendant if he would consent to a urine test. Defendant agreed to provide [263 Or.App. 718] a urine sample. The urine tested positive for Ambien, Paxil, Trazodone, and Hydroxyzine.
As noted, relying on Moore I, defendant moved to suppress the results of the urine test contending that, in light of the fact that " the officer read [defendant] paragraphs A though I in section 1 of the Motorist Implied Consent Rights and also read him (a) through (c) in section 2," defendant's consent to the urine test was involuntary under Article I, section 9, of the Oregon Constitution. In that case, we adhered to and readopted reasoning originally set forth in Machuca I, that, under Article I, section 9, consent to blood and urine testing obtained after a defendant has received the statutory implied consent warnings is involuntary. 247 Or.App. at 46. The trial court agreed with defendant, concluding that " this case is indistinguishable from Machuca I and Moore [ I ]." Although the trial court noted that, generally, " informing a citizen of the consequences which will lawfully flow from a refusal to consent does not render the consent involuntary," it further observed that " it is absolutely clear that Machuca I and Moore [ I ] are controlling precedent on this issue unless and until the Oregon Supreme Court weighs in on the matter." Accordingly, the court ruled that defendant's consent to the urine test was not voluntary.
Thereafter, during the pendency of this appeal, the Supreme Court issued its decision in Moore II. In that case, the court concluded that an officer's reading of the statutory [263 Or.App. 719] rights and consequences of refusing to submit to blood, breath, or urine testing does not render a defendant's consent to such testing involuntary. 354 Ore. at 503. According to the court, " advising a defendant of the lawful consequences that may flow from his or her decision to engage in a certain behavior ensures that that defendant makes an informed choice whether to engage in that behavior or not." Id. at 502-03. Although " accurately advising a defendant of a lawful penalty that could be imposed may well play a role in the defendant's decision to engage
in the particular behavior, * * * that does not mean that the defendant's decision was ...