Argued and Submitted March 19, 2014.
Clackamas County Circuit Court. CR1112062. Ronald D. Thom, Judge.
Kali Montague, Deputy Public Defender, argued the cause for appellant. With her on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Joanna L. Jenkins, Assistant Attorney General, argued the cause for respondent. With her on the briefs were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Duncan, Presiding Judge, and Haselton, Chief Judge, and Wollheim, Senior Judge.
[267 Or.App. 323] HASELTON, C. J.
Defendant appeals a judgment of conviction for driving under the influence of intoxicants (DUII), ORS 813.010. Defendant argues that the trial court (1) erred in denying his motion to suppress urinalysis test results that were obtained after officers violated defendant's rights under Article I, section 12, of the Oregon Constitution, and (2) committed plain error by imposing a $255 conviction fee pursuant to ORS 813.030. We reach the first assignment of error only; the nature of our disposition obviates any need to consider the second assignment of error. As explained below, we conclude that, under the totality-of-the-circumstances analysis established in State v. Jarnagin, 351 Or. 703, 277 P.3d 535 (2012), the urinalysis derived from a constitutional violation, and the trial court's admission of that evidence requires that defendant's conviction be reversed and the case be remanded.
We review the denial of a motion to suppress for errors of law and are bound by the trial court's factual findings that are supported by sufficient evidence in the record. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993). In this case, the trial court made certain factual findings concerning the motion to suppress. In describing the pertinent events, therefore, we draw from those express findings, together with other undisputed facts contained in the record and reasonable inferences consistent with the trial court's ruling. See Ball v. Gladden, 250 Or. 485, 487, 443 P.2d 621 (1968) (in the absence of express findings, we generally presume that the trial court decided factual issues consistently with its ultimate conclusion).
On the morning of June 7, 2011, defendant, who was under post-prison supervision, drove to the Clackamas County Work Release Center. An intake deputy at the center observed that defendant " appeared to be under the influence of something" and knew that defendant had just driven himself there. The intake deputy subsequently contacted the Milwaukie Police Department, prompting a DUII investigation.
[267 Or.App. 324] Officers Neitch and Hall arrived at the center around noon. They immediately went to the small meeting room where defendant was waiting. Upon encountering defendant, the officers observed that he appeared glassy-eyed and lethargic, had droopy eyelids, and nodded off at times. After introducing themselves and advising defendant that they were investigating him for DUII, the officers questioned him about his activities that morning. They asked whether defendant had driven to the work release center; defendant admitted that he had. The officers asked defendant if he had consumed alcohol, which defendant denied, or drugs, which defendant admitted. In particular, defendant said that, before his arrival at the work release center, he had consumed several prescription medications--Suboxone, Pristiq, and Seroquel--all of which are controlled substances.
Approximately 10 to 15 minutes after the encounter began, the officers, concerned that circumstances had become compelling, read the Miranda warnings to defendant, who, in turn, indicated his understanding. Neitch then asked defendant if he would perform a series of field sobriety tests. Defendant responded that he was not willing to perform the tests and that he wanted to speak to his attorney. Hall replied that, " at this point in the investigation," defendant " wouldn't be able to speak to an attorney," but that there would be " ample opportunity to make a phone call" later on. Hall proceeded to read a Rohrs admonishment--that is, a warning that refusal to submit to physical tests could be used against defendant in court, see State v. Rohrs, 157 Or.App. 494, 499, 970 P.2d 262 (1998), aff'd, 333 Or. 397, 40 P.3d 505 (2002)--and demonstrated a physical test. Hall again asked defendant to perform the field sobriety tests, and, this time, defendant complied.
Defendant performed poorly on the field sobriety tests. Despite defendant's earlier invocation of his right to counsel, Hall asked defendant " how he thought he did on the test," to which defendant replied, " not so good."
[267 Or.App. 325] After the field sobriety tests were completed, the officers placed defendant under arrest and transported him to the police station. Nothing in the record indicates that the officers readvised defendant of his Miranda rights at that point--or at any other point during the investigation. At the station, the officers sought defendant's consent to an Intoxilyzer test, as well as his participation in a Drug Recognition Evaluation (DRE). Hall read an implied consent form, advising defendant of the rights and consequences related to taking or refusing a breath test. Defendant agreed to submit to an Intoxilyzer breath test, which Hall administered. While Hall and defendant were in the testing room, Hall asked whether defendant would drive with a person in his current condition; defendant replied that no, he would not. Hall also asked how much medication defendant had taken. Defendant responded that he took an extra quarter pill of the Seroquel, which he thought had affected his ability to drive.
After the Intoxilyzer showed that defendant had 0.0 percent blood alcohol content, Officer Funkhouser, a drug recognition expert, took over the investigation from Hall and Neitch. Funkhouser proceeded with the DRE, which included another interview with defendant.
At the end of the DRE, defendant gave a sample of his urine to Funkhouser. That urine later tested positive for methamphetamine, as well as two prescription medications, Pristiq and Lamictal.
Defendant was charged with DUII. The state alleged that defendant " did unlawfully drive a motor vehicle * * * while under the influence of intoxicants, to-wit: controlled substances." Defendant filed a motion to suppress, alleging, [267 Or.App. 326] among other things, a violation of his right to an attorney under Article I, section 12, and seeking suppression of all statements, the field sobriety tests, the DRE, and the urinalysis. At the suppression hearing, the trial court heard extensive testimony from Neitch and Hall, who described the entire interaction with defendant as " polite" and " cooperative."  The main issue at the hearing was whether a Miranda violation had occurred; the parties' arguments focused on ...