Submitted December 15, 2014.
121154082. Multnomah County Circuit Court. Michael J. McShane, Judge.
Peter Gartlan, Chief Defender, and Rond Chananudech, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Tiffany Keast, Assistant Attorney General, filed the brief for respondent.
Before Lagesen, Presiding Judge, and Haselton, Chief Judge, and Flynn, Judge.[*]
[271 Or.App. 559] FLYNN, J.
Defendant appeals a judgment of conviction for driving under the influence of intoxicants (DUII), ORS 813.010. Prior to trial, defendant moved to suppress the evidence of intoxication, arguing that the evidence was obtained during an unlawful traffic stop, and the trial court denied the motion. During the suppression hearing, the trial court refused to allow into evidence a Final Order Dismissing Suspension for Refusing a Breath Test that was issued by the Driver and Motor Vehicle Services Division (DMV), which contains findings regarding the circumstances of the stop at issue in the motion to suppress. On appeal, defendant assigns error to the exclusion of that DMV order, emphasizing that the rules of evidence do not apply to preliminary hearings and that the administrative order was probative of the credibility of one of the arresting officers. We conclude that the trial court erred in refusing to admit the DMV order, but we also conclude that the error was harmless. Accordingly, we affirm.
Officers Ginnow and Fender arrested defendant for DUII based on observations they made after stopping defendant for speeding. Following the arrest, defendant refused to submit to a breath test, and the DMV held a hearing to determine if his driver's license should be suspended for that refusal. Because the breath test request flowed from the officer's observations during the traffic stop, one of the issues at the suspension
hearing was the validity of the stop. The excluded DMV order reflects findings by the administrative law judge (ALJ) that the seven-block stretch of road along which defendant was allegedly speeding " has at least four large speed bumps" and that Ginnow's testimony that defendant was traveling at least 60 miles per hour was " implausible."  In explaining that credibility assessment, the administrative order recites, " In this matter, Officer Ginnow testified that there were no speed bumps between [271 Or.App. 560] 79th and 72nd Avenue on Crystal Springs where he followed Petitioner. He then later testified he did not recall any speed bumps."
At the hearing on defendant's motion to suppress, Fender testified that the road stretch contained speed bumps, and Ginnow again testified that defendant's speed was at least 60 miles per hour. Defense counsel sought to admit a copy of the ALJ's order, arguing that it was relevant because " it contains statements that Officer Ginnow made." The trial court disagreed, explaining, " I don't believe the opinion of an administrative law judge has any relevance to the fact finding and decision-making I have to make here[.]" That is the ruling to which defendant assigns error, renewing his argument that the DMV order was relevant for impeachment because it " contained statements that Ginnow made during the DMV hearing which contradicted his testimony at the suppression hearing."
Defendant first emphasizes--correctly--that the rules of evidence do not apply in suppression hearings. OEC 104(1) provides:
" Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege or the admissibility of evidence shall be determined by the court * * *. In making its determination the court is not bound by the rules ...