State v. Mazzola

356 Or. 804

345 P.3d 424

STATE of Oregon, Respondent on Review

v.Dina Louise MAZZOLA, Petitioner on Review.

CC 101198M

CA A148224

SC S062126.

Supreme Court of Oregon, En Banc.

March 5, 2015.

Argued and Submitted Oct. 9, 2014.

Decided March 5, 2015.

Kyle Krohn, Deputy Public Defender, Salem, argued the cause and filed the brief for petitioner on review. With him on the brief was Peter Gartlan, Chief Defender.

Susan G. Howe, Senior Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Opinion

BREWER, J.

A police officer stopped defendant for two traffic violations; in the course of the stop, the officer observed signs of intoxication and developed probable cause to arrest defendant for driving under the influence of one or more controlled substances. The officer then asked defendant to perform several field sobriety tests (FSTs). After performing them, defendant was arrested for controlled-substance DUII. ORS 813.010(1)(b).¹ Before trial, defendant moved to suppress the results of certain of the FSTs. The trial court denied that motion, and, on defendant's appeal from her ensuing conviction, the Court of Appeals affirmed. State v. Mazzola, 260 Or.App. 378, 317 P.3d 360 (2013). The dispositive issue on review is whether, in denying defendant's motion to suppress, the trial court erred in concluding that exigent circumstances had existed that—when coupled with probable cause to arrest defendant for driving under the influence of a controlled substance—justified the warrantless administration of the FSTs under Article I, section 9, of the Oregon Constitution. See State v. Nagel, 320 Or. 24, 30–33, 880 P.2d 451 (1994) (FSTs are searches for which a warrant generally is required under Article I, section 9 ; an exception to the warrant requirement is “a search conducted with probable cause and under exigent circumstances”).² For the reasons explained below, we affirm the ruling of the trial court and the decision of the Court of Appeals.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The pertinent facts are undisputed. Grants Pass police officer Lohrfink observed defendant's car turn and make a lane change without proper signaling. Lohrfink stopped defendant, approached her car, and asked for her driver's license and other paperwork. He noticed that defendant's speech was slurred, her eyes were glassy, her eyelids were droopy, and she was sweating. Defendant also had difficulty retrieving her driver's license from her wallet and fumbled her paperwork; she seemed to have difficulty understanding the officer's questions and made slow, methodical movements. Lohrfink did not detect any odor of alcohol.

Defendant handed a California identification card to Lohrfink. He asked her again for her driver's license, and she appeared confused, apparently thinking that she already had given it to him. Defendant then clarified that she was in the process of obtaining an Oregon driver's license. Lohrfink asked her about her slurred speech, and she initially denied—but later acknowledged—that her speech was slurred. Lohrfink asked defendant where she lived in California; she initially was uncertain and later said that she had just moved to Oregon.

After conducting that preliminary investigation, Lohrfink believed that he had probable cause to arrest defendant for driving under the influence of a controlled substance, but he did not know which drugs she might have taken. Lohrfink had two-and-a-half years' experience as a police officer and 15 years of experience as a paramedic; he had received training “about signs to look for” for drivers who are impaired by alcohol and controlled substances. Although Lohrfink was not trained as a Drug Recognition Expert (DRE), he was trained in the administration of FSTs. His paramedic training included “college level pharmacology courses, anatomy and physiology,” and he had taught those courses to other paramedic students. Based on that training and experience, and his common knowledge, he knew the “basic” facts that “over time the body filters drugs and they dissipate in one's body,” that different drugs dissipate at different rates, and that the effects of drugs wear off over time. Lohrfink also knew that controlled substances differ from alcohol in that drug metabolites remain in the body longer than alcohol and can be detected in a later urine test. However, he did not know “the specific science of that.”

After concluding that he had probable cause to arrest defendant, Lohrfink asked, “[A]re you willing to step out so I can check your eyes and make sure you're okay to drive?”³ Defendant said, “Okay.” Lohrfink then asked defendant if she took any medications, and she said that she had a prescription for sleeping pills and also had taken Soma.⁴ Lohrfink then administered the horizontal gaze nystagmus (HGN) test,⁵ and he observed no “clues of impairment.” Lohrfink was not surprised by the HGN test result, because that test does not detect the presence of certain medications and controlled substances. After administering the HGN test, Lohrfink said, “We're going to do a few more tests, okay?” Defendant responded, “Okay.” She believed that Lohrfink was telling her what to do; when she agreed to perform the additional tests, she was “just doing what he told me to do.” Lohrfink administered three additional FSTs: the walk-and-turn test, the one-leg-stand test, and the finger-to-nose test.⁶ After administering those tests, Lohrfink arrested defendant for driving under the influence of a controlled substance.

Defendant filed a pretrial motion to suppress evidence obtained as a result of the traffic stop and DUII investigation. In her written motion and at the suppression hearing, defendant acknowledged that she had consented to the HGN test but asserted (1) that she did not actually consent to the three additional FSTs, and (2) that Officer Lohrfink had lacked probable cause to believe that she had been driving under the influence of a controlled substance. At the close of the suppression hearing, defendant further argued that, even if there had been probable cause, the state had to prove that exigent circumstances existed, and it had failed to do so.

The trial court found that defendant had not actually consented to the administration of the three additional FSTs. However, the court concluded that Lohrfink had had probable cause to arrest defendant for driving under the influence of a controlled substance and that exigent circumstances existed. Accordingly, the court denied the motion to suppress.

Defendant entered a conditional guilty plea and appealed, challenging the denial of her motion to suppress. Mazzola, 260 Or.App. at 381, 317 P.3d 360. On appeal, defendant did not contest the trial court's determination that probable cause existed; rather, she focused solely on whether exigent circumstances supported the warrantless search. For its part, the state did not argue that defendant actually consented to the tests; instead, it, too, focused on the exigency issue. As noted, the Court of Appeals affirmed the trial court's ruling, holding that, in light of this court's decisions in Nagel and State v. Machuca, 347 Or. 644, 227 P.3d 729 (2010), “the evanescent nature of controlled-substance intoxication” created an exigency that—together with probable cause—permitted the warrantless administration of the challenged FSTs. Mazzola, 260 Or.App. at 382–83, 317 P.3d 360. In so concluding, the court emphasized that “the issue is whether the rate of dissipation of defendant's physical, observable symptoms of intoxication—that is, the type of evidence collected pursuant to a FST—created an exigency.” Id. at 382 n. 2, 317 P.3d 360 (emphasis in original).

On review, defendant argues that this court should not recognize an exigency that ordinarily authorizes the warrantless administration of FSTs where a police officer has probable cause to believe that a motorist is under the influence of a controlled substance. Defendant asserts that, unlike alcohol, the rates at which the effects of various controlled substances dissipate within the human body are not matters of common knowledge. Defendant notes that, despite Lohrfink's training and experience as a police officer and paramedic, Lohrfink knew only the “basic” fact that the effects of drugs dissipate over time. Defendant asserts that the chemical dissipation rates of controlled substances can vary, depending both on the kind of drug and the kind of test involved, and that drug metabolites can remain in a person's system long after the effects of the drug have dissipated. Because the record contains no evidence of the dissipation rates for controlled substances that might have been in her body, defendant contends that the trial court could only speculate as to whether any significant loss of evidence might have occurred if Lohrfink had taken the time to seek a warrant to compel the administration of the challenged FSTs.⁷

The state responds that exigent circumstances generally are present when an officer reasonably believes that a motorist is under the influence of a controlled substance. According to the state, it is well known that the effects of drugs dissipate from a person's body, even if the particular rates of dissipation are not known or knowable at the roadside scene of a DUII arrest. Given the complexity of their metabolisms and the fact that controlled substances affect people in unpredictable ways, the state asserts that it is not possible to accurately determine how long a suspect would continue to be under the influence of a controlled substance. And, the state posits, when multiple drugs are involved, the reaction within a particular person's system is even more unpredictable. In addition, the state notes, there is no presumptive level of impairment that can be ascertained from the presence of drugs in a suspect's blood stream or...