Submitted November 25, 2015
County Circuit Court 13CR04800; Gary S. Thompson, Senior
Gartlan, Chief Defender, and Emily P. Seltzer, Deputy Public
Defender, Offce of Public Defense Services, fled the brief
F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor
General, and Susan Yorke, Assistant Attorney General, fled
the brief for respondent.
Ortega, Presiding Judge, and Hadlock, Chief Judge, and
Summary: Defendant appeals from a judgment of conviction for
driving under the influence of intoxicants (DUII), in
violation of ORS 813.010. He assigns error to the trial
court's denial of his motion to suppress, in which he
argued that statements he made before his arrest occurred
under compelling circumstances that required Miranda
warnings. Among other reasons, defendant asserts that,
because the investigating officer told him that he was not
free to leave and his movements were restricted, and because
the officer told him that he was too impaired to drive, his
statements were elicited in violation of his constitutional
rights against compelled self-incrimination. Held:
Because the circumstances preceding defendant's arrest
did not go beyond a routine investigatory detention and,
therefore, were not compelling, the trial court did not err
in denying the motion to suppress.
ORTEGA, P. J.
appeals from a judgment of conviction for driving under the
influence of intoxicants (DUII), in violation of ORS 813.010.
He assigns error to the trial court's denial of his
motion to suppress, in which he argued that statements he
made before his arrest occurred under compelling
circumstances that required warnings under Miranda v.
Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d
694 (1966). Among other reasons, defendant asserts, as he did
below, that because the investigating officer told him that
he was not free to leave and his movements were restricted,
and because the officer told him that he was too impaired to
drive, his statements were elicited in violation of Article
I, section 12, of the Oregon Constitution, which provides
that no person "shall be * * * compelled in any criminal
prosecution to testify against himself." Reviewing the
denial of the motion to suppress for legal error, State
v. Smith, 310 Or 1, 7, 791 P.2d 836 (1990), we conclude
that the circumstances preceding defendant's arrest were
not compelling and, therefore, the trial court did not err.
recount the facts consistently with the trial court's
factual findings and its decision denying defendant's
motion to suppress. State v. Shaff, 343 Or 639, 641,
175 P.3d 454 (2007). Shortly before 10:40 p.m., Deputy Larson
was patrolling the streets of Culver when he noticed a red
Toyota pickup truck with a white taillight, which is a
traffic violation. The deputy caught up to the truck and then
turned on the patrol car's overhead lights. Soon after, the
truck pulled into a driveway, which Larson later learned was
the driveway of defendant's home. Larson angled his
patrol car at the edge of the driveway, just off the road.
The driver- defendant-started getting out of the truck, and
Larson got out of his patrol car and asked defendant to stay
in his truck so that Larson could issue a traffic citation
for the tail-light; it was routine for Larson to ask a driver
to remain in a vehicle during a traffic stop because of
officer safety concerns. Defendant put one foot on the
ground, and Larson again asked him to remain in the truck.
Defendant did not comply with Larson's request but, when
Larson approached the truck and asked defendant a couple more
times to stay inside, defendant complied by sitting in the
driver's seat and shutting the truck door.
saw that defendant's eyes were glassy and bloodshot and
that his movements were slow and deliberate, and he could
smell a strong odor of alcohol coming from the truck. After
Larson informed defendant of the reason for the stop-the
white taillight-defendant explained why the taillight was
broken, and Larson could smell alcohol on defendant's
breath. As defendant reached for his driver's license,
registration, and proof of insurance, Larson continued to
notice defendant's slow and deliberate movements and that
defendant had to focus and concentrate to cooperate with the
stop. At that point, Larson told defendant of his belief that
defendant was "too impaired to have been driving."
Defendant responded that he was "buzzed."
returned to his patrol car to run defendant's information
and then resumed talking to defendant, who at some point got
out of the truck. Larson observed that defendant appeared
frustrated and angry. Defendant asked Larson if he was going
to arrest him, and Larson replied:
"Well, I have a process to go through. This is an
investigation. I'm not going to make a determination just
now. I'd like to finish the investigation first."
defendant tried to walk past Larson, Larson reached out and
put his hand on defendant's shoulder for about one
second, just strong enough to stop defendant's progress
to the point where defendant could finish his step, and then
brought his hand back. As he did so, Larson gently told
defendant, "Stay right here. You're not free to
leave yet." Larson then ...