December 23, 2014.
125911MI. Jackson County Circuit Court. Lorenzo A. Mejia, Judge.
Doug M. Petrina, Senior Assistant Attorney General, argued the cause for appellant. With him on the briefs were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Meredith Allen, Senior Deputy Public Defender, argued the cause for respondent. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Before Sercombe, Presiding Judge, and Hadlock, Judge, and Tookey, Judge.
[271 Or.App. 818] TOOKEY, J.
Pursuant to ORS 138.060(1)(c), the state appeals a pretrial order granting defendant's motion to suppress evidence resulting from the warrantless testing of her breath. Because we conclude that defendant voluntarily consented to the testing of her breath, we reverse and remand.
We are bound by the trial court's findings of fact as long as there is constitutionally sufficient evidence to support them. State v. Ehly, 317 Or. 66, 74-75, 854 P.2d 421 (1993). In the absence of express factual findings, we presume that the trial court decided the disputed facts in keeping with its ultimate conclusion. Id. On appeal, " [o]ur function is to
decide whether the trial court applied legal principles correctly to those facts." Id. We state the facts consistently with those standards.
At 1:23 a.m., Officer Rosas observed that a vehicle driven by defendant was speeding, swerving in its lane, and crossing into the bicycle lane. He activated his overhead emergency lights and pulled defendant over for a " routine traffic stop." The vehicle was occupied by multiple people, so Rosas requested back up. Officers Vanderlip and Wenzel soon arrived as backup.
After Rosas approached the vehicle and observed defendant, Rosas noticed that defendant had bloodshot and watery eyes and that there was an odor of alcohol coming from the car, and he suspected that defendant was under the influence of intoxicants. Rosas asked defendant how much she had had to drink, and defendant told Rosas that she had had two beers. At that point, Rosas believed that he had probable cause to investigate defendant for driving under the influence of intoxicants (DUII), and he asked her if she would consent to perform field sobriety tests. Defendant then consented to perform field sobriety tests, performed the tests on a nearby sidewalk, and failed.
At 1:38 a.m., Rosas informed defendant that she was under arrest, read her Miranda warnings, and placed her in handcuffs. Rosas then escorted her to the back of his patrol car, helped her into the back seat, and drove her to the police department. Vanderlip and Wenzel " stayed behind [271 Or.App. 819] to deal with the other occupants in the car for a ...