State v. Hoffman

321 Or.App. 330

515 P.3d 912

STATE of Oregon, Plaintiff-Respondent,

v.Michael John HOFFMAN, Defendant-Appellant.

A173684

Court of Appeals of Oregon.

Argued and submitted February 28, 2022

August 10, 2022

Joel C. Duran, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Joanna L. Jenkins, Assistant Attorney General, argued for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Ortega, Presiding Judge, and Powers, Judge, and Hellman, Judge.

HELLMAN, J.

Defendant appeals his conviction for driving under the influence of intoxicants (DUII). ORS 813.010(4). On appeal, he asserts three assignments of error. First, he assigns error to the trial court's grant of the state's motion for a postponement of the trial. Second, he assigns error to the denial of his motion to suppress evidence of his blood-alcohol test results (medical blood draw), arguing that the hospital staff's disclosure of those results in compliance with ORS 676.260 infringed on his Fourth Amendment privacy interests. Third, he challenges the denial of his motion in limine to exclude the medical blood draw evidence, contending that the state did not establish an adequate chain of custody.

For the reasons below, we conclude that defendant's first assignment of error is unpreserved in part and that the trial court did not otherwise abuse its discretion in granting the state's request for a postponement. As to defendant's third assignment of error, we accept the state's concession that it did not lay an adequate foundation for the admission of the medical records containing defendant's blood-alcohol level. Because the issue raised in defendant's second assignment of error regarding the Fourth Amendment is likely to arise on remand, we resolve that issue and conclude that defendant's argument is foreclosed by our decision in State v. Fincher , 303 Or App 165, 166, 462 P.3d 780 (2020), rev'd in part on other grounds , 368 Or. 560, 494 P.3d 927 (2021) (readopting State v. Miller , 284 Or App 818, 395 P.3d 584, vac'd , 362 Or 300, 408 P3d 1079 (2017)), in which we reaffirmed that individuals do not have an expectation of privacy under the Fourth Amendment in blood-alcohol test results under the limited circumstances described by ORS 676.260. We therefore reverse and remand for further proceedings.

BACKGROUND FACTS

The relevant facts are largely undisputed. Defendant was riding his motorcycle when he was involved in a car crash. He was taken to the hospital for treatment, where hospital staff performed a blood test in the course of providing medical care (medical blood draw). When Officer Welter arrived at the hospital about an hour and a half later to speak with defendant, a nurse informed her that the medical blood draw results showed that defendant had a blood alcohol content (BAC) of 0.257 percent. Officer Welter then spoke to defendant in his hospital room, where he consented to a second blood draw (implied-consent blood draw).

Defendant was charged with DUII (Count 1) and driving while suspended (Count 2), ORS 811.182(4).¹ Defendant filed a motion to suppress evidence of the implied-consent blood draw on August 20, 2019, which was 21 days before his scheduled September 10, 2019, trial date. At a pretrial hearing on the morning of September 10, the trial court granted defendant's motion to suppress the implied-consent blood draw, concluding that it was obtained in violation of defendant's right to counsel.

The state then requested that the trial scheduled for later that day be postponed so that it could subpoena the medical blood draw. The state explained that, while it should have subpoenaed the medical blood draw earlier, it had instead planned to rely on the implied-consent blood draw up until defendant filed his motion to suppress 21 days before trial. At that point, accounting for defendant's likely objections, the state did not believe it could successfully subpoena the medical blood draw in time for the existing trial date and did not attempt to do so. The state conceded that it "should have requested those" earlier but asked for a setover based on the trial court's suppression of the implied-consent blood draw.

When the trial court asked whether postponing the trial would prejudice him, defendant responded that he did not believe the state's explanation was "sufficient good cause" for a postponement and that the state should have subpoenaed the medical blood draw earlier. Defendant did not argue that the court should dismiss the indictment on that basis. Instead, he argued that he would be prejudiced by any delay because he wanted to proceed to trial that day and file a motion for judgment of acquittal. He expected that the trial court would grant the motion, given the lack of a BAC in the record. Defendant also argued that if the trial were postponed, he would need to spend time and resources hiring an expert and litigating the state's subpoena.

After hearing from both parties, the trial court granted the state's motion to reset the trial date. The trial court recognized that "by taking away a substantial part of the [s]tate's case" through the grant of defendant's motion to suppress the implied-consent blood draw, the state had "to re-evaluate." The trial court found that there was no "other specific prejudice, other than the legal positioning of the parties" and determined that that was not "sufficient" to deny the motion. The trial court explained that the motion to suppress had been a "close call," and that it was "not readily apparent as you analyze everything as—as to how it comes out." The trial court reiterated that it was granting the motion because the suppression hearing had "substantially rearranged the position of the [s]tate."

The state then filed a motion requesting a subpoena for the medical blood draw, which the trial court granted over defendant's objection. Defendant thereafter filed a motion to suppress the medical blood draw. Defendant argued that hospital staff took state action that violated his right to privacy under the Fourth Amendment to the United States Constitution when they complied with ORS 676.260. That statute requires hospital staff to report a patient's elevated blood-alcohol level to law enforcement when a blood test is performed on a patient believed to be a driver involved in a car crash. The trial court denied defendant's motion to suppress.

The trial court also denied defendant's motion in limine seeking to exclude the medical blood draw, in which he argued, in part, that testimony from the state's expert witness failed to establish an adequate chain of custody to trace the blood draw back to defendant.

MOTION TO POSTPONE

As described above, following the suppression of the implied-consent blood draw, the state requested a "setover" to allow it time to subpoena the medical blood draw. On appeal, defendant challenges the trial court's grant of that request. We review the trial court's grant of a motion for continuance for abuse of discretion. State v. Stull , 281 Or App 662, 666, 386 P.3d 122 (2016), rev den. , 360 Or. 752, 388 P.3d 726 (2017).

After granting the state's motion for continuance, defendant argues that the trial court erred in failing to dismiss the indictment with prejudice because the state failed to show "sufficient cause" for postponement under ORS 136.120. The state responds that defendant's arguments are not preserved because he did not move for dismissal under ORS 136.120. We agree with the state.

To preserve an error for appeal, a party must demonstrate that the question or issue was presented below with sufficient particularity to allow the trial court to rule on the argument and correct any error. State v. Wyatt , 331 Or. 335, 343, 15 P.3d 22 (2000). One of the underlying purposes of the preservation requirement is to ensure that the opposing party and the trial court were given enough information to understand the argument and to have fairly responded to the argument below. State v. Walker , 350 Or. 540, 552, 258 P.3d 1228 (2011). Although raising a specific statute or source for a claimed position is not always necessary to preserve an argument, raising the particular issue "ordinarily is essential." State v. McKinney/Shiffer , 369 Or. 325, 332, 505 P.3d 946 (2022) (internal quotation marks omitted).

Given trial courts’ expertise in managing the demands and practicalities of trial dockets, we have historically been reticent to second-guess the trial court's grant or denial of motions for postponement or continuance. State v. Kindler , 277 Or App 242, 250, 370 P.3d 909 (2016). In reviewing for abuse of a trial court's discretion, we have been understanding of the broad and pragmatic range of legally correct choices. Id. ; see also State v. Johnson , 304 Or App 78, 83, 466 P.3d 710 (2020). That range depends on the particular circumstances of the case and the reasons presented to the trial court. Stull , 281 Or App at 667, 386 P.3d 122.

In some instances, following a trial court's denial of the state's motion to continue, a defendant will move for dismissal of the indictment under ORS 136.120(1), which provides:

"If the defendant appears at the time set for trial and the prosecuting attorney is not ready and does not show sufficient cause for postponing the trial, the court shall dismiss the accusatory instrument unless the court determines that dismissal is not in the public interest."

See also State v. Shaw , 338 Or. 586, 595-96, 113 P.3d 898 (2005) (detailing an instance where defendant moved for dismissal under ORS 136.120 following trial court's denial of state's motion for continuance); State v. Sondenna , 222 Or App 506, 509, 194 P.3d 817 (2008) (same). On review of a trial court's decision whether to dismiss an indictment under ORS 136.120, we review whether the trial court erred as a matter of...