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State v. Mazzola

Supreme Court of Oregon, En Banc

March 5, 2015

STATE OF OREGON, Respondent on Review,
v.
DINA LOUISE MAZZOLA, Petitioner on Review

Page 425

Argued and submitted, at La Grande High School, La Grande, Oregon, October 9, 2014.

On review from the Court of Appeals.[*] CC 101198M; CA A148224.

State v. Mazzola, 260 Or.App. 378, 317 P.3d 360 (2013)

The decision of the Court of Appeals and the judgment of the circuit court are affirmed.

Kyle Krohn, Deputy Public Defender, Salem, argued the cause and filed the brief for petitioner on review. With him on the brief was Peter Gartlan, Chief Defender.

Susan G. Howe, Senior Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

OPINION

Page 426

[356 Or. 805] BREWER, J.

A police officer stopped defendant for two traffic violations; in the course of the stop, the officer observed signs of intoxication and developed probable cause to arrest defendant for driving under the influence of one or more controlled substances. The officer then asked defendant to perform several field sobriety tests (FSTs). After performing them, defendant was arrested for controlled-substance DUII. ORS 813.010(1)(b).[1] Before trial, defendant moved to suppress the results of certain of the FSTs. The trial court denied that motion, and, on defendant's appeal from her ensuing conviction, the Court of Appeals affirmed. State v. Mazzola, 260 Or.App. 378, 317 P.3d 360 (2013). The dispositive issue on review is whether, in denying defendant's motion to suppress, the trial court erred in concluding that exigent circumstances had existed that--when coupled with probable cause to arrest defendant for driving under the influence of a controlled substance--justified the warrantless administration of the FSTs under Article I, section 9, of the Oregon Constitution. See State v. Nagel, 320 Or. 24, 30-33, 880 P.2d 451 (1994) (FSTs are searches for which a warrant generally is required under Article I, section 9; an exception to the warrant requirement is " a search conducted

Page 427

with probable cause and under exigent circumstances" ).[2] For the reasons explained below, we affirm the ruling of the trial court and the decision of the Court of Appeals.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The pertinent facts are undisputed. Grants Pass police officer Lohrfink observed defendant's car turn and [356 Or. 806] make a lane change without proper signaling. Lohrfink stopped defendant, approached her car, and asked for her driver's license and other paperwork. He noticed that defendant's speech was slurred, her eyes were glassy, her eyelids were droopy, and she was sweating. Defendant also had difficulty retrieving her driver's license from her wallet and fumbled her paperwork; she seemed to have difficulty understanding the officer's questions and made slow, methodical movements. Lohrfink did not detect any odor of alcohol.

Defendant handed a California identification card to Lohrfink. He asked her again for her driver's license, and she appeared confused, apparently thinking that she already had given it to him. Defendant then clarified that she was in the process of obtaining an Oregon driver's license. Lohrfink asked her about her slurred speech, and she initially denied--but later acknowledged--that her speech was slurred. Lohrfink asked defendant where she lived in California; she initially was uncertain and later said that she had just moved to Oregon.

After conducting that preliminary investigation, Lohrfink believed that he had probable cause to arrest defendant for driving under the influence of a controlled substance, but he did not know which drugs she might have taken. Lohrfink had two-and-a-half years' experience as a police officer and 15 years of experience as a paramedic; he had received training " about signs to look for" for drivers who are impaired by alcohol and controlled substances. Although Lohrfink was not trained as a Drug Recognition Expert (DRE), he was trained in the administration of FSTs. His paramedic training included " college level pharmacology courses, anatomy and physiology," and he had taught those courses to other paramedic students. Based on that training and experience, and his common knowledge, he knew the " basic" facts that " over time the body filters drugs and they dissipate in one's body," that different drugs dissipate at different rates, and that the effects of drugs wear off over time. Lohrfink also knew that controlled substances differ from alcohol in that drug metabolites remain in the body longer than alcohol and can be detected in a later urine test. However, he did not know " the specific science of that."

[356 Or. 807] After concluding that he had probable cause to arrest defendant, Lohrfink asked, " [A]re you willing to step out so I can check your eyes and make sure you're okay to drive?" [3] Defendant said, " Okay." Lohrfink then asked defendant if she took any medications, and she said that she had a prescription for sleeping pills and also had taken Soma.[4] Lohrfink then administered the horizontal gaze nystagmus (HGN) test,[5] and he observed no " clues of impairment." Lohrfink was not surprised by the HGN test result, because that test does not detect the presence of certain medications and controlled substances. After administering the HGN test, Lohrfink said, " We're going to do

Page 428

a few more tests, okay?" Defendant responded, " Okay." She believed that Lohrfink was telling her what to do; when she agreed to perform the additional tests, she was " just doing what he told me to do." Lohrfink administered three additional FSTs: the walk-and-turn test, the one-leg-stand test, and the finger-to-nose test.[6] After administering those tests, Lohrfink arrested defendant for driving under the influence of a controlled substance.

Defendant filed a pretrial motion to suppress evidence obtained as a result of the traffic stop and DUII investigation. In her written motion and at the suppression hearing, defendant acknowledged that she had consented to the HGN test but asserted (1) that she did not actually consent to the three additional FSTs, and (2) that Officer Lohrfink [356 Or. 808] had lacked probable cause to believe that she had been driving under the influence of a controlled substance. At the close of the suppression hearing, defendant further argued that, even if there had been probable cause, the state had to prove that exigent circumstances existed, and it had failed to do so.

The trial court found that defendant had not actually consented to the administration of the three additional FSTs. However, the court concluded that Lohrfink had had probable cause to arrest defendant for driving under the influence of a controlled substance and that exigent ...


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