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State v. Moore

Court of Appeals of Oregon

August 20, 2014

STATE OF OREGON, Plaintiff-Appellant,
v.
JESSE JAMES MOORE, Defendant-Respondent

Submitted on Remand April 24, 2014

Tillamook County Circuit Court. 091131. On remand from the Oregon Supreme Court, State v. Moore, 354 Or. 493, 318 P.3d 1133 (2013), adh'd to as modified on recons, 354 Or. 835, 322 P.3d 486 (2014) . Mari Garric Trevino, Judge.

John R. Kroger, Attorney General, Mary H. Williams, Solicitor General, and Timothy A. Sylwester, Senior Assistant Attorney General, filed the brief for appellant.

Peter Gartlan, Chief Defender, and Marc D. Brown, Deputy Public Defender, Office of Public Defense Services, filed the brief for respondent.

Before Armstrong, Presiding Judge, and Haselton, Chief Judge, and Duncan, Judge.

OPINION

Page 508

[265 Or.App. 3] HASELTON, C. J.

This case is before us on remand from the Supreme Court with instructions that we consider defendant's two alternative bases for affirmance, which we had not previously reached or resolved. State v. Moore, 247 Or.App. 39, 269 P.3d 72 (2011) ( Moore I ), rev'd, 354 Or. 493, 318 P.3d 1133 (2013) ( Moore II ), adh'd to as modified on recons, 354 Or. 835, 322 P.3d 486 (2014). For the reasons that follow, we conclude that defendant's alternative contentions are unavailing. Accordingly, we reverse and remand.

We briefly summarize the contextual facts and procedure in this case, taking the following statement of facts from Moore II :

" 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 * * *. 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.
[265 Or.App. 4] " 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. 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

Page 509

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. 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 ...

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