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State v. Taylor

Court of Appeals of Oregon

February 27, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
LISA JEAN TAYLOR, Defendant-Appellant.

          Submitted October 27, 2017

          Clackamas County Circuit Court CR1511900 Robert D. Herndon, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Rond Chananudech, Deputy Public Defender, Offce of Public Defense Services, fled the briefs for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Joanna L. Jenkins, Assistant Attorney General, fled the briefs for respondent.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Case Summary:

         Defendant appeals a judgment of conviction for driving under the influence of intoxicants (DUII), ORS 813.010. Defendant assigns error to the trial court's denial of her motion to suppress evidence of defendant's blood alcohol content (BAC), which the officer obtained when defendant agreed to take a breath test. Defendant argues that the trial court should have suppressed the breath test results because that evidence was derived from the preceding unlawful interrogation of defendant, in violation of defendant's rights under Article I, section 12, of the Oregon Constitution. Held: The trial court erred when it concluded that the BAC evidence did not derive from the preceding violation of defendant's Article I, section 12, rights. Therefore, the trial court erred when it denied defendant's motion to suppress the BAC evidence.

         Reversed and remanded.

         [296 Or.App. 279] TOOKEY, J.

         Defendant appeals a judgment of conviction for driving under the influence of intoxicants (DUII), ORS 813.010, which the court entered following defendant's conditional guilty plea. The issue on appeal is whether the trial court erred when it partially denied defendant's motion to suppress evidence.

         The trial court determined that a law enforcement officer impermissibly interrogated defendant, in violation of defendant's rights under Article I, section 12, of the Oregon Constitution, because defendant did not understand her Miranda rights and because defendant equivocally invoked her right to remain silent.[1] As a result, the trial court suppressed the statements that defendant made following field sobriety tests and defendant's responses to a series of questions that the officer asked to complete a DUII interview report. However, the trial court declined to suppress evidence of defendant's blood alcohol content (BAC), which the officer obtained when defendant agreed to take a breath test.

         Defendant assigns error to that ruling, arguing that the "trial court should have suppressed the breath test results because that evidence derived from the exploitation of the violation of defendant's Article I, section 12, right." For the reasons that follow, we conclude that the trial court erred in failing to suppress the evidence of defendant's BAC and, accordingly, we reverse and remand.

         I. BACKGROUND

         We review the denial of a defendant's motion to suppress for legal error and are bound by the trial court's express factual findings if evidence in the record supports them. State v. Ehly, 317 Or. 66, 74-75, 854 P.2d 421 (1993). "If findings of historical fact are not made on all pertinent issues and there is evidence from which such facts could be decided more than one way, we will presume that the facts were decided in a manner consistent with the court's [296 Or.App. 280] ultimate conclusion." Id. at 75. We recount the facts in accordance with that standard.

         A. Facts

         At 4:21 p.m., Sergeant Marl received information from a concerned citizen about defendant driving erratically near the Milwaukie Marketplace. The citizen informed Marl that she had almost had a head on collision with defendant, because defendant was driving the wrong way coming out of the Milwaukie Marketplace, and that defendant was currently in the drive-through of a Taco Bell. After receiving that information and a description of defendant's car, Marl drove to the marketplace where he saw defendant's car leave the Taco Bell drive-through, run over a curb, and park in a through way between a Shari's and the Taco Bell.

         Marl approached defendant's car and observed that she appeared to be "passed out[, ] *** slumped over and wasn't moving." Marl then noticed that defendant was not passed out, but that "she was actually trying to eat some food that she had got at Taco Bell." Defendant "slowly looked up at [Marl] and she had some food running down her chin" and "dripping into her lap, but she told [Marl] that she was okay." Marl observed that defendant's "eyes were watery, her speech was slurred," and her movements were "slow and methodical." Marl asked defendant how much she had to drink, and defendant replied that she had "one drink" at home. Because Marl suspected defendant of DUII, he alerted other officers in the area and asked defendant to perform some field sobriety tests. Defendant agreed to take the field sobriety tests.

         At 4:26 p.m., Officer Downey arrived on his motorcycle and continued the DUII investigation. Downey "noticed a faint odor of alcohol," that defendant's "eyes were glassy, her face was flushed, her speech was slurred, * * * that her hand and body motions were slow and sluggish[, ] and that she was sitting behind the wheel of her vehicle and was swaying back and forth." After observing defendant, Downey thought that defendant had been driving under the influence of intoxicants, and he also obtained defendant's consent to perform field sobriety tests.

         [296 Or.App. 281] Defendant performed the horizontal gaze nystagmus test (HGN), part of the walk-and-turn test, and part of the one-leg stand test. Downey observed multiple "clues" on the HGN test that indicated that defendant was under the influence of intoxicants. When Downey administered the walk-and-turn test, he noticed that defendant "was swaying in a circular motion," that none of her steps were heel to toe, and that defendant "couldn't walk on the white line." Defendant stated that she could not complete the walk-and-turn test "because she had dyslexia" and she sat down on the curb. Downey then demonstrated the one-leg stand test for defendant, but defendant "couldn't stand without swaying" and she sat back down on the curb. Defendant stated that she could not perform the one-leg stand test "because she had dementia." At that point, Downey asked defendant "if she should be driving, if she had been drinking and had dementia and dyslexia." Defendant responded, "Probably not." When asked by Downey how defendant felt "on a scale of one to ten with zero being completely sober and ten being falling down drunk," defendant replied that "she was a two."

         At 4:41 p.m., Downey arrested defendant for DUII, advised defendant of her Miranda rights, and asked defendant if she understood those rights. Defendant said, "No." Downey then read defendant her Miranda rights a second time and asked defendant if she understood those rights. Defendant said, "No." Downey followed up by going through each right, trying to express each right in simpler terms, and asked defendant a third time if she understood her rights. Defendant did not respond, and Downey had Marl transport defendant to the holding facility at the Milwaukie Police Department.

         At 5:02 p.m., Downey began the observation period for the breath test by filling out some paperwork and by checking defendant's mouth to make sure there were no foreign substances that would compromise the breath test results. Downey then interviewed defendant using the Oregon State Police alcohol influence interview report, which is designed to gather evidence for DUII investigations. After asking defendant 28 questions from the alcohol influence interview report and documenting her responses, Downey read [296 Or.App. 282] defendant the implied consent "rights and consequences" form. After each paragraph, Downey asked defendant whether she understood that paragraph. When defendant indicated that she did not understand a paragraph, Downey reread the paragraph again until defendant indicated that she understood. Downey wrote defendant's answers down on the implied consent form. Additionally, at some ...


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