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State v. Nelson

Court of Appeals of Oregon

May 10, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
DARIN LANE NELSON, Defendant-Appellant.

          Submitted November 25, 2015

         Jefferson County Circuit Court 13CR04800; Gary S. Thompson, Senior Judge.

          Peter Gartlan, Chief Defender, and Emily P. Seltzer, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Susan Yorke, Assistant Attorney General, fled the brief for respondent.

          Before Ortega, Presiding Judge, and Hadlock, Chief Judge, and Lagesen, Judge.

         Case 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.

         Affirmed.

          ORTEGA, P. J.

         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 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."[1] 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. We affirm.

         We 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.[2] 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.

         Larson 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."

         Larson 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."

         When 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 ...


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