State v. Kelly

                                      493

   Argued and submitted January 14, reversed and remanded July 15, 2020


                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
              CHRISTOPHER KENNETH KELLY,
                    Defendant-Appellant.
               Multnomah County Circuit Court
                    16CR76786; A167836
                                  

    Defendant appeals from a judgment of conviction, following a conditional
plea, for driving under the influence of intoxicants, ORS 813.010, and reckless
driving, ORS 811.140. He challenges the trial court’s denial of his motion to suppress evidence obtained from a warrantless, unconsented blood draw, contending
that no exigency existed to justify the draw because the hospital at which he was
receiving treatment had already conducted a blood draw and captured his blood
alcohol content. The state contends that the hospital’s prior blood draw did not
negate the exigency and, thus, the warrantless blood draw was lawful. Held: The
trial court erred in denying defendant’s motion to suppress. There was insufficient evidence in the record to support a finding of exigency at the time of the
second blood draw.
    Reversed and remanded.



    Melvin Oden-Orr, Judge.
   Matthew Blythe, 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.
   Philip Thoennes, Assistant Attorney General, argued
the cause for respondent. Also on the briefs were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
    MOONEY, J.
    Reversed and remanded.
494                                           State v. Kelly

        MOONEY, J.
         Defendant appeals from a judgment of conviction,
following a conditional plea, for driving under the influence of intoxicants (DUII), ORS 813.010, and reckless driving, ORS 811.140. He challenges the trial court’s denial of
his motion to suppress evidence obtained from a warrantless, unconsented blood draw, contending that no exigency
existed to conduct the draw because the hospital at which
he was receiving treatment had already conducted a blood
draw and captured his blood alcohol content (BAC). The
state contends that the hospital’s prior blood draw did not
negate the exigency and, thus, the warrantless blood draw
was lawful. We conclude that there is insufficient evidence
in the record to support a finding of exigency at the time
of the second blood draw and that the trial court therefore
erred in denying defendant’s motion to suppress. Pursuant
to ORS 135.335, we reverse and remand so that defendant
may withdraw his conditional plea. State v. Dinsmore, 

, 

 (2002).
         We review the trial court’s denial of defendant’s
motion to suppress for errors of law. State v. Middleton, 

, 

 (2018). We are bound by the
trial court’s findings of fact if they are supported by evidence in the record. 

 In the absence of express factual
findings, we presume that the court decided the disputed
facts in keeping with its ultimate conclusion. 

         We state the following facts, taken from testimony
presented at the hearing on defendant’s motion to suppress,
consistently with that standard. On November 8, 2016,
Gresham Police Officer Snider was dispatched at 5:55 p.m.
to a car accident. When Snider arrived, defendant was still
in the driver’s seat of his car, which had flipped upside
down. Snider could smell “a strong odor of alcohol” coming
from defendant’s car and defendant’s speech was slurred.
Because defendant’s car had flipped over and pushed a
parked car “back about a car length,” Snider believed that
defendant was driving faster than the posted speed limit
of 25 miles per hour at the time of the accident and had
run several stop signs to reach that speed. Medical personnel removed defendant from the car and transported him
Cite as 

 (2020)                                                   495

to the trauma unit at Oregon Health and Science University
Hospital (OHSU).
          When defendant arrived at OHSU, medical staff
drew his blood and tested it (the medical blood draw) as
part of the medical evaluation process. Snider arrived at
OHSU at 7:20 p.m., approximately an hour and a half after
the accident. By the time he arrived, the medical staff had
completed their initial evaluation and testing of defendant,
including the blood draw, and they cleared Snider to speak
with defendant. Snider advised defendant of his Miranda
rights and then began asking him questions. During the
conversation, defendant’s speech was still slurred, and he
had an “overwhelming odor” of alcohol. Snider asked how
much defendant “had been drinking” to which defendant
responded, “not enough.” Defendant told Snider that he had
been driving 40 to 45 miles per hour. Snider then told defendant that he was under arrest for DUII, read defendant the
“rights and consequences from the implied consent form,”
and asked defendant to consent to a blood draw. Defendant
did not consent to the blood draw.
          At some point during his investigation, Snider
learned that the medical blood draw indicated “there was a
blood alcohol level.”1 Snider initially asked hospital staff not
to tell him the specific BAC results obtained from the medical
blood draw. And, then, without obtaining a warrant, Snider
asked a hospital nurse to perform another blood draw (forensic blood draw). Snider testified that he did not attempt to
get a warrant in advance of the forensic blood draw because
it would have taken “a good three to four hours.” The forensic blood draw was performed at 8:28 p.m., about two and
a half hours after the accident. Prior to that second blood
draw being completed, Snider learned the results of the hospital blood draw. The next day, Snider obtained a warrant
to have the forensic blood draw tested. The blood was tested
by the Oregon State Police crime lab and confirmed that
defendant’s BAC was above the amount allowed by law.

    1
      ORS 676.260 requires a health care facility providing immediate postmotor-vehicle-accident medical care to the presumed driver to notify any investigating law enforcement officer present at the facility of the result of any blood test
performed in the course of treatment that reveals a BAC that meets or exceeds
the percent specified in ORS 813.010.
496                                            State v. Kelly

        Defendant was charged with DUII, ORS 813.010,
and reckless driving, ORS 811.140. Prior to trial, he moved
to suppress the results of the forensic blood draw, contending
that no exigency existed to justify the warrantless search
and seizure because the hospital had already completed
a blood draw which necessarily preserved any evidence of
defendant’s BAC. Defendant advanced both state and federal constitutional arguments in support of his motion.
The state argued that the first draw did not eliminate the
exigency.

         The trial court invited counsel to submit any cases
or other authority they might find on the effect of an existing medical blood draw on a subsequent forensic blood draw
and then recessed to consider the motion. When the parties
returned to court, neither had been able to find any such
legal authority and the court ruled that “exigent circumstances did exist, notwithstanding [its] concerns about the
prior test.” Defendant then entered a conditional no-contest
plea reserving the right to challenge the denial of his
motion to suppress. Defendant appeals, raising essentially
the same arguments advanced before the trial court; however, defendant’s argument is limited to Article I, section 9,
of the Oregon Constitution. He does not develop any argument under the Fourth Amendment to the United States
Constitution.

          Under the Oregon Constitution, a blood draw conducted by the police is both a search of a person and a seizure of an “effect”—that person’s blood—that implicates
constitutional protection. State v. Perryman, 

, 

 (2015) (citing State v. Milligan, 

, 

 (1988)). As we have often stated, a
warrantless search or seizure is per se unreasonable unless
it falls “within one of the few specifically established and
carefully delineated exceptions to the warrant requirement.” State v. Bridewell, 

, 

(1988). Furthermore, the state bears the burden of proving that a warrantless search or seizure falls within one
of those carefully delineated exceptions to the warrant
requirement. State v. Baker, 

, 

(2011).
Cite as 

 (2020)                             497

         As framed by the parties, the only potentially applicable warrant exception is the “exigent circumstances”
exception. That exception “allows the police to conduct a
warrantless search or seizure when there is probable cause
to arrest and there are ‘exigent circumstances.’ ” Perryman,

. “Exigent circumstances include, among
other things, situations in which immediate action is necessary to prevent the disappearance, dissipation, or destruction of evidence.” State v. Meharry, 

, 

 (2006). “In the context of a DUII investigation, destruction of evidence is occasioned by the natural dissipation of
alcohol from the ‘vessel containing evidence of [the] crime’—
the human body.” Perryman, 

 (quoting
Milligan, 

). Up to this point, the parties agree.

         The parties further agree that, when a person has
been legally seized for the crime of DUII, the continual dissipation, or evanescent nature, of the person’s BAC presents
an exigency that will ordinarily permit a warrantless blood
draw under Article I, section 9. State v. Machuca, 

, 

 (2010). The parties disagree, however,
about whether this is one of the “ordinary” cases that permits a warrantless blood draw under Article I, section 9.

         As mentioned, defendant argues that this is not
such a case because the OHSU staff had already conducted
a blood draw; therefore, there “was no risk that evidence
of defendant’s BAC would be lost or reduced to a form that
was unusable in a criminal case against defendant.” The
state contends that the medical draw did not extinguish the
exigency because OHSU staff drew and tested defendant’s
blood for medical purposes, not forensic purposes. The state
presents six reasons why that distinction matters: (1) the
state needed to control and later prove the chain of custody
of its evidence; (2) “the hospital [might] have performed a
different type of test than the one used at the state crime
laboratory—one that is less accurate”; (3) Snider had no way
of knowing whether the hospital used its entire blood sample in performing its BAC test or whether any blood was left
for later testing; (4) Snider had no way of knowing, assuming some blood was left over after the hospital’s test, if that
blood was preserved and available to the state at a later
498                                                         State v. Kelly

time; (5) “Snider did not know if anything was added to the
hospital’s sample that [might] have adulterated it, such as
preservatives”; and (6) the state might not be able to identify
relevant witnesses to the hospital’s testing and thus might
be faced with later confrontation problems at trial. The
state argues in the alternative that, those reasons notwithstanding, the second blood draw had independent evidentiary value because it could be used to help show whether
defendant’s BAC was “going up or down.”2
          Because the state bears the burden of proving that
an exigency existed, State v. Nagel, 

, 31 n 6, 

 (1994), we begin with the state’s arguments. The
state relies principally on Machuca and subsequent cases.
In Machuca, the Oregon Supreme Court reaffirmed its statement in Milligan that, when there is an exigency created by
the dissipating evidence of blood alcohol, a warrantless search
and seizure “is constitutionally justified, unless a warrant
can be obtained.” Machuca, 

 (emphasis added).
The court further concluded that, “when probable cause to
arrest for a crime involving the blood alcohol content of the
suspect is combined with the undisputed evanescent nature
of alcohol in the blood, those facts are a sufficient basis to
conclude that a warrant could not have been obtained without sacrificing that evidence.” 

 (emphasis added). The state
rests its argument on the following statement in Machuca:
      “It may be true, phenomenologically, that, among such
   cases, there will be instances in which a warrant could
   have been both obtained and executed in a timely fashion.
   The mere possibility, however, that such situations may
   occur from time to time does not justify ignoring the inescapable fact that, in every such case, evidence is disappearing and minutes count. We therefore declare that, for purposes of the Oregon Constitution, the evanescent nature of
   a suspect’s blood alcohol content is an exigent circumstance
   that will ordinarily permit a warrantless blood draw of the
   kind taken here. We do so, however, understanding that
   particular facts may show, in the rare case, that a warrant could have been obtained and executed significantly
   faster than the actual process otherwise used under the

    2
      The state does not argue that the subsequent search warrant was so attenuated from the unlawful seizure that suppression was not necessary.
Cite as 

 (2020)                                                 499

    circumstances. We anticipate that only in those rare cases
    will a warrantless blood draw be unconstitutional.”
Id. at 656-57 (emphasis in original).
         The state contends that this is not one of the “rare
cases” in which a warrant could have been obtained and
executed significantly faster than the actual process for
obtaining a blood draw. In State v. Martinez-Alvarez, 

, 

 (2011), we examined what
constitutes a “rare case” under Machuca. Initially, we noted
that “two basic principles” underscore that analysis: “(1) the
actual loss of blood alcohol content by virtue of the passage
of time creates an exigency; and (2) generally, the time that
it takes to obtain a warrant results in the dissipation of
blood alcohol content.” 

       “In light of those concerns, we conclude[d] that, whatever else a ‘rare case’ may mean—and we [did] not purport
    to define the extremely limited universe of ‘rare cases’—it
    necessarily includes a case in which an objectively reasonable officer would have understood at the time of the DUII
    stop and arrest that a warrant could have been obtained
    significantly more quickly than the actual time (and consequent dissipation of alcohol) between the probable cause
    determination and the administration of the breath test or
    blood draw. Our emphasis [was] quite conscious: The standard is not one of ‘20/20 hindsight’—rather, it is predicated
    on an officer’s contemporaneous perspective based on information known or reasonably discernible in the totality of
    the circumstances of the particular encounter.”

 (emphasis in original).3
    3
     We provided this hypothetical as illustrative:
   “An officer stops and arrests a motorist for DUII on a highway in a remote area
   of central or eastern Oregon, miles from the nearest town (and tow truck).
   The officer cannot transport the suspect to the stationhouse for a breath test
   until the tow truck arrives to remove the suspect’s vehicle—which will take
   well over an hour. So it will take at least two hours before the breath test can
   be administered. Although the officer may be engaged during some of that
   time (e.g., inventorying the vehicle), there will be a significant amount of time
   that the officer is not otherwise engaged and is simply waiting for the tow
   truck. Assume further that the record establishes that a reasonably objective
   officer knows that he or she can generally obtain a telephonic warrant in 30
   minutes and that, thus, in the hypothetical circumstance, the warrant would
   be waiting by the time that the officer and suspect arrive at the stationhouse.
   Under such circumstances, the ‘rare case’ exception would apply.”
Martinez-Alvarez, 

.
500                                             State v. Kelly

          According to the state, Snider was “faced with the
exact dynamic identified in Machuca: He had probable cause
to believe that defendant committed DUII and needed to
obtain evidence of defendant’s BAC, but that ‘evidence was
disappearing and minutes count.’ ” There can be no question
that blood-alcohol evidence circulating in a suspect’s blood
vessels is “in a persistent state of destruction” from the time
it is consumed until “fully metabolized by the body.” State v.
Ritz, 

, 

 (2017). But, here, a blood
draw had already been done. It was the state’s burden to
establish whether a second blood draw was justified by the
dissipating evidence of blood alcohol. And, as explained in
Martinez-Alvarez, 

, that requires the state
to demonstrate that the officer’s subjective belief—that the
second draw was needed to adequately preserve evidence of
BAC and that obtaining a warrant would have delayed preserving the evidence that was dissipating, Ritz, 361 Or at
795—was objectively reasonable based on the officer’s “contemporaneous perspective based on information known or
reasonably discernible in the totality of the circumstance.”
Martinez-Alvarez, 

.

        The state contends that, because that sample was
drawn and tested for medical, not forensic, purposes, the
medical blood draw did not negate the exigency and it,
accordingly, carried its burden. It essentially argues that
the medical blood draw might not have been available, might
not have been reliable, and might not have been admissible.

        Defendant’s BAC had been preserved at the point
the medical draw was accomplished. The testing of that
blood determined and documented the BAC level. The state
did not offer evidence that an objectively reasonable officer
in Snider’s position would have been concerned that the
medical blood draw or test results would not be reliable or
available as evidence at trial. This case is less like Machuca,
where the officer properly obtained a warrantless blood
draw at the hospital when no blood draw had yet been performed, and is more like Ritz, where the Supreme Court held
that an officer’s warrantless entry into the defendant’s home
was not justified as exigent, because the state offered no
evidence that obtaining a warrant to enter the home would
Cite as 

 (2020)                             501

have delayed preserving the defendant’s BAC evidence. 

.

         Not only had a blood draw already been completed
when the officer arrived at OHSU, that specimen had been
tested. Snider was made aware of the blood draw by OHSU
staff, but he directed them not to advise him of the test
results and instead directed that a second blood draw be
done. Those results could have been offered as evidence
against defendant. State v. Fincher, 

,

 (2020) (readopting State v. Miller, 

, 

, vac’d, 

, 

 (2017)).
If there was a potential evidentiary problem with a medical blood draw, the state did not offer evidence to the trial
court of such a problem. The state did not offer evidence of
whether or how the two blood draws might differ either scientifically or evidentiarily. It did not establish how laying a
foundation for admission of the medical blood draw and test
results might differ materially from laying a foundation for
the admission of other hospital specimens in such a way as
to create an exigency that only the use of a forensic laboratory or expert could avoid. Neither did it offer evidence that
an objectively reasonable officer in Snider’s position would
have been concerned about such an evidentiary problem.
Given the state of the record, we conclude that the state did
not carry its burden of proving that an exigency existed to
excuse the warrant requirement.

        We now move to, and reject, the state’s second theory,
that the forensic blood draw had independent evidentiary
value, justifying warrantless seizure under the exigency
exception to the warrant requirement. Defendant argues,
and we agree, that the state did not sufficiently develop that
argument in the trial court by providing a comparison with
defendant’s BAC at the time of the medical blood draw. In
redirect examination, Snider made a passing reference to
the possibility that a second blood draw “could also show if
his BAC level’s going up or down from the—from the information we got at the hospital.” But, that testimony was not
pursued, developed, or mentioned again. The state does
not request that we affirm under the “right for the wrong
reason” doctrine, and we do not exercise our discretion to
502                                           State v. Kelly

do so because we think it likely that the record would have
developed differently had the issue been adequately raised.
Outdoor Media Dimensions Inc. v. State of Oregon, 

, 

 (2001) (to affirm on an alternative
bases requires, among other things, that “the record materially be the same one that would have been developed had
the prevailing party raised the alternative basis for affirmance below”).
        The trial court erred in denying defendant’s motion
to suppress.
        Reversed and remanded.