State v. Hoffman

                                      330

    Argued and submitted February 28; conviction on Count 1 reversed and
 remanded, remanded for resentencing, otherwise affirmed August 10; petition
             for review denied December 15, 2022 (

)


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                  MICHAEL JOHN HOFFMAN,
                      Defendant-Appellant.
                 Washington County Circuit Court
                      19CR35185; A173684
                                  

    Defendant appeals his conviction for driving under the influence of intoxicants (DUII). 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. Held: The trial court
did not abuse its discretion in granting the state’s motion for a continuance. The
trial court did, however, err in denying defendant’s motion in limine to exclude
the medical blood draw based on defendant’s objection to the inadequate chain of
custody, which was not harmless with respect to the DUII conviction. Finally, as
explained in State v. Miller, 

, 

, vac’d, 

, 

 (2017), which controls in this case, defendant does not have a privacy
interest in his blood-alcohol test results under the Fourth Amendment, and the
trial court did not err in denying defendant’s motion to suppress on that basis.
    Conviction on Count 1 reversed and remanded; remanded for resentencing;
otherwise affirmed.



   Donald R. Letourneau, Senior Judge.
   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.
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 (2022)                       331

  HELLMAN, J.
   Conviction on Count 1 reversed and remanded; remanded
for resentencing; otherwise affirmed.
332                                        State v. Hoffman

        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, 

, 

 (2020), rev’d
in part on other grounds, 

, 

 (2021)
(readopting State v. Miller, 

, 

,
vac’d, 

, 

 (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
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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

   1
     Defendant does not challenge his conviction for driving while suspended,
ORS 811.182(4), on appeal.
334                                          State v. Hoffman

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
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request. We review the trial court’s grant of a motion for
continuance for abuse of discretion. State v. Stull, 

, 

 (2016), rev den, 

 (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, 

, 

 (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, 

,

 (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, 

, 

 (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,

, 

 (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, 

,

 (2020). That range depends on the particular
circumstances of the case and the reasons presented to the
trial court. Stull, 

.
         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:
336                                            State v. Hoffman

   “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, 

, 

(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, 

, 

 (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 law in determining whether the state showed
“sufficient cause” for postponing the trial, and we evaluate
whether the trial court abused its discretion in determining
whether dismissal was “in the public interest.” Shaw, 

.
         In this case, defendant did not move for dismissal
of the indictment. Instead, he wanted to go to trial that day
so that he could move for a judgment of acquittal, which he
anticipated would be granted in light of the state’s lack of
evidence. An acquittal and a dismissal of the indictment
result in legally distinct outcomes, and here, defendant
asked for only one of them. Because the defendant never
moved for dismissal, the trial court did not have an opportunity to consider the legal determinations it was required
to make under ORS 136.120.
         To be sure, defendant used the phrase “sufficient
good cause” when he made his motion, which could be referring to the language in ORS 136.120. However, defendant’s
argument was focused on proceeding to trial, not having the
indictment dismissed. We are unpersuaded that one party’s
motion for a continuance automatically raises the issue of
whether to dismiss the indictment under ORS 136.120, and
defendant has cited no cases that support that proposition.
Defendant’s argument that the trial court “erred when it
concluded that the state had shown ‘sufficient cause’ for postponement under ORS 136.120” is therefore unpreserved.
        To the extent that defendant additionally argues
that the trial court abused its discretion in granting the
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state’s motion for a continuance, we find no abuse of discretion. The trial court weighed the state’s reasoning regarding
its failure to subpoena the medical blood draw at an earlier
stage under the legal standard, including the state’s concession that it should have subpoenaed the medical blood
draw sooner. It also considered defendant’s response that
he would be prejudiced by a postponement because if the
second blood draw was admitted, he would have to use
resources to prepare for a trial and would be in a worse position for purposes of a motion for judgment of acquittal. The
court then granted the state’s motion, determining that its
ruling on the motion-to-suppress was not obvious to predict and had “substantially rearranged” the state’s position
and that defendant would not suffer prejudice from a postponement other than from the inherent legal positioning
of the parties. That decision based on those considerations
was well within the range of legally correct discretionary
choices. See State v. Licari, 

, 

, rev den, 

 (2014) (“Whether a denial of a
continuance is improper depends on the particular circumstances of the case and the reasons presented to the court at
the time the request is denied.”) (internal quotation marks
omitted)); 

 (“If the trial court’s decision was within the
range of legally correct discretionary choices and produced
a permissible, legally correct outcome, then the trial court
did not abuse its discretion.”) (internal quotation marks
omitted).

        We also disagree with defendant’s argument that
State v. Fredinburg, 

, 

,
rev den, 

 (2013), stands for the proposition that
motions for a continuance made after pretrial hearings
and on the day set for trial are untimely as a matter of law.
The precedent relied upon in Fredinburg instead concluded
that, under the circumstances of that case, it was within
the range of legally permissible options for the trial court
to deny such a motion as untimely. State v. Martinez, 

, 

 (2008), rev den, 

(2009).

       Further, concluding that motions for continuance
made on the day of trial are untimely as a matter of law
338                                          State v. Hoffman

would be inconsistent with our precedent and the realities
of trial practice, which sometimes necessitate a last-minute
continuance. See State v. Read, 

, 

 (2020) (surprise unavailability of witness); Johnson,

 (defendant did not expect to go to trial
that day and did not have physical access to her case notes);
State v. Hickey, 

, 

 (1986)
(defendant’s counsel’s briefcase stolen the night before trial).
         For those reasons, the trial court did not exceed
the bounds of legally permissible discretion in granting the
state’s motion for a continuance.
            ADEQUATE CHAIN OF CUSTODY
         In his third assignment of error, defendant argues
that the trial court erred in denying defendant’s motion in
limine, because the state did not establish a chain of custody
that linked the medical blood draw to him. The state concedes error. We agree with defendant’s argument and accept
the state’s concession.
         Determining the adequacy of the foundation required
to establish a chain of custody rests within the discretion of
the trial court. State v. Summers, 

, 

 (2016). We therefore review the trial court’s ruling
regarding the adequacy of the medical blood draw’s foundation for abuse of discretion. 

         Under OEC 901(1), the requirement of authentication as to a piece of evidence “is satisfied by evidence
sufficient to support a finding that the matter in question
is what its proponent claims.” That rule sets forward the
well-accepted requirement that whenever a piece of evidence
is offered, there must be certain minimum assurances that
the evidence is “what it purports to be, what it is offered as
being, and what its value depends on.” State v. Sassarini,

, 

 (2019) (internal quotation
marks and brackets omitted). The requirements for authentication depend on the particular circumstances and the
nature of the evidence that is offered. 

. In the context of a DUII case involving a blood draw, we have stated
that a showing that the blood sample was a valid blood draw
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from the defendant involves laying a traditional chain of
custody foundation. State v. Owens, 

, 

 (2006), rev den, 

 (2007).
         This case is like State v. Martin, 

, 

 (2020), in which we determined that medical reports containing results of the defendant’s blood-alcohol test were not self-authenticating. Here, the state
concedes that testimony from Jones, a toxicology supervisor for the Oregon State Police Forensic Lab, who testified
broadly about the different ways to analyze blood-alcohol
content, was not sufficient to establish the authenticity of
the medical blood draw. Jones expressly testified that he did
not know the medical blood draw’s chain of custody, did not
know who conducted the medical blood draw or whether the
test was performed properly, and did not have an opinion as
an expert on the accuracy of any test performed.
         In short, the state did not present a witness that
could testify as to the medical blood draw test’s chain of
custody or properly authenticate it. Nor did the medical
blood draw itself provide sufficient support to overcome the
challenge to the chain of custody. Based on this record the
trial court could not determine that there was a reasonable probability that the medical blood draw results traced
back to defendant’s blood. The trial court erred in admitting
the medical blood draw over defendant’s chain of custody
objection.2
         We further conclude that the admission of the medical blood draw was not harmless. We must affirm the conviction for DUII if we conclude that there is “little likelihood that the particular error affected the verdict.” State v.
Davis, 

, 

 (2003). Here, the state’s
case against defendant depended entirely on defendant’s
elevated BAC as reported in the medical blood draw; there
was no other evidence of his intoxication. As a result, the
    2
      To the extent that defendant argues that the state also had to fulfill the
foundational standards for “scientific” evidence under State v. Brown, 

,

 (1984), and State v. O’Key, 

, 

 (1995), that argument is foreclosed by State v. Helgeson, 

, 

 (2008).
Defendant does not present an argument on appeal that our decision in Helgeson
was plainly wrong, and we therefore decline to undertake that analysis. State v.
Ardizzone, 

, 

, rev den, 

 (2015).
340                                                      State v. Hoffman

erroneous admission of the medical blood draw had more
than a “little likelihood” of affecting the verdict.
         We therefore agree with the parties that because
the trial court erroneously admitted the medical blood draw
we must reverse and remand the judgment. As the court
did in Martin, we leave it to the trial court to determine
the appropriate nature of the proceedings on remand. See
Martin, 

 (reaching the same result).3
                      FOURTH AMENDMENT
         In his second assignment of error, defendant argues
that the trial court erred in denying his motion to suppress
the results of his medical blood draw because hospital staff’s
disclosure of his BAC under the mandatory reporting statute, ORS 676.260, violated his right to privacy under the
Fourth Amendment to the United States Constitution.4 See
Kyllo v. United States, 

, 

, 

 (2001) (A “Fourth Amendment search occurs
when the government violates a subjective expectation of
privacy that society recognizes as reasonable.”). Because
that issue is likely to arise on remand, we reach and address
the merits of that legal issue. State v. Savage, 

, 

 (2020). We review the trial court’s
denial of a motion to suppress for errors of law. State v.
Bistrika, 

, 

 (2014).
        The mandatory reporting statute at issue, ORS
676.260(1), provides:
       “A health care facility that provides medical care immediately after a motor vehicle accident to a person reasonably believed to be the operator of a motor vehicle involved
    in the accident shall notify any law enforcement officer
    who is at the health care facility and is acting in an official capacity in relation to the motor vehicle accident if the
    3
      Separately, defendant also contends that the blood-alcohol hospital records
were hearsay and violated his right of confrontation under Article I, section 11,
of the Oregon Constitution. Because we are reversing and remanding on subconstitutional grounds and because the issue may arise on a different record on
remand, we do not reach defendant’s constitutional argument.
    4
      The Fourth Amendment protects the “right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures ….”
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   health care facility becomes aware, as a result of any blood
   test performed in the court of that treatment, that:

      “(a) The person’s blood alcohol level meets or exceeds
   the percent specified in ORS 813.010.”

         Under the limited circumstances prescribed by that
mandatory reporting statute—where a blood test performed
in the course of medical treatment on a person believed to
have been driving in a car crash reveals an elevated blood-alcohol level—we have concluded that individuals do not
have a reasonable expectation of privacy in their BAC test
results under the Fourth Amendment. Fincher, 

.
         In Miller, we noted that although the United States
Supreme Court “may have recognized a general expectation of privacy in medical test results” in Ferguson v. City
of Charleston, 

, 

, 

(2001), the Court also repeatedly emphasized that it was not
addressing compliance with mandatory reporting statutes
and that “the existence of such laws might lead a patient to
expect that members of the hospital staff might turn over
evidence acquired in the course of treatment to which the
patient had consented[.]” Miller, 

 (quoting Ferguson, 

 n 13). In other words, Miller
relied on the Court’s reasoning that the existence of mandatory reporting statutes themselves suggests that society,
as expressed through its representatives in the legislature,
does not accept as reasonable an expectation of privacy in
information subject to mandatory reporting. Where the
defendant in Miller did not address why the existence of
ORS 676.260(1) does not eliminate any expectation of privacy in his BAC test result, we declined to address any contrary argument. Id. at 832. And, assuming without deciding
that the hospital staff’s compliance with ORS 676.260(1)
constituted state action, we concluded that the staff’s disclosure did not implicate a protected privacy interest under the
Fourth Amendment. Id. at 833.
         Defendant attempts to distinguish this case from
Miller, as reaffirmed in Fincher, in three different ways. We
find none of them persuasive.
342                                                       State v. Hoffman

         First, defendant argues that this case is factually
distinguishable from Miller and Fincher because defendant
in this case argues that he did not consent to a blood draw
for criminal investigatory purposes. But our decisions in
Miller and Fincher were also premised on an understanding that the defendants’ blood was drawn during the course
of medical treatment, unrelated to a criminal investigation,
and that those defendants also did not preemptively consent
to their blood test results being used for criminal investigatory purposes. Fincher, 

 (blood draw taken
for medical purposes at hospital after collision); Miller, 

 (defendant expressly rejected officer’s secondary request for blood draw). The medical blood draw at issue
here does not differ factually from those considered in Miller
and Fincher.
         Second, defendant argues that the Fourth Amendment
analysis regarding whether defendant has a privacy interest in his blood-alcohol test results under the circumstances described in ORS 676.260, as explained in Miller,
has changed in light of the Supreme Court’s decision in
Carpenter v. United States, 

, 

, 

 (2018).
         As explained in Carpenter, the Fourth Amendment
protects against physical intrusions into constitutionally
protected areas and protects “certain expectations of privacy.” 585 US at ___, 

. A government intrusion amounts to a search when a government actor violates
an individual’s subjective expectation of privacy, and that
expectation of privacy is also one that society is prepared
to recognize as reasonable.5 

 Under what is commonly
referred to as the third-party doctrine, however, the Court
     5
       As in Miller, 

, we assume without deciding that the hospital’s disclosure in compliance with ORS 676.260(1) was state action, and we
do not address that issue. We note, however, that the issue is not settled. United
States v. Rosenow, 33 F4th 529 (9th Cir 2022) (“Our caselaw is clear that a private
actor does not become a government agent simply by complying with a mandatory
reporting statute.”). Defendant also does not fully address how a conclusion that
complying with ORS 676.260 constitutes state action might affect other mandatory reporting statutes. See, e.g., ORS 124.060 (mandatory reporting of elder
abuse); ORS 419B.010 (mandatory reporting of child abuse); ORS 430.765 (mandatory reporting of abuse of an adult); ORS 339.372(3)(B) (mandatory reporting
of sexual abuse of a student); ORS 707.735 (duty of banking institution to report
criminal activity).
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has consistently held that “a person has no legitimate expectation of privacy in information he voluntarily turns over to
third parties.” Smith v. Maryland, 

, 

, 

 (1979) (holding that the defendant had no privacy interest in phone numbers dialed on
his home phone that he necessarily shared with his phone
company); United States v. Miller, 

, 

, 

 (1976) (holding that the defendant
had no privacy interest in banking records shared with his
bank).
         In Carpenter, the Court “decline[d] to extend Smith
and Miller” and the third-party doctrine to cover 127 days’
worth of an individual’s cell-site location information (CSLI)
retrieved from his cellphone company. Carpenter, 585 US at
___, 

. The Court recognized that the government’s warrantless request for CSLI records implicated
two lines of cases regarding the privacy interest at issue.

. First, the Court drew upon its long line of
cases addressing a person’s expectation of privacy in his
physical location and movements. 

. Second, the
Court explained that the request for CSLI also implicated
the third-party doctrine, under which it reiterated that “the
Government is typically free to obtain such information
from the recipient without triggering Fourth Amendment
protections.” 

. Analyzing the defendant’s privacy
interest in his CSLI data at the intersection of those two
lines of cases, the Court held that given the uniquely personal nature of the location information revealed through
CSLI, the fact that the information was held by a third
party did not negate the defendant’s privacy interest in that
data. 

. The Court established that an individual
maintains a legitimate expectation of privacy in the record
of his physical movements as captured by CSLI, and that
CSLI represented the “rare case where the suspect has a
legitimate privacy interest in records held by a third party.”

.
         Defendant argues that, as in Carpenter, his privacy
interest in the results of the medical blood draw was not
subject to the third-party doctrine due to the “deeply revealing nature” of the information disclosed by the medical blood
draw.
344                                         State v. Hoffman

        Carpenter is distinguishable. Defendant draws upon
the emphasis on CSLI’s underlying nature in Carpenter,
arguing that his medical records reveal information of
the same intensely personal nature as CSLI. Carpenter’s
emphasis on the underlying nature of CSLI, however, was
done in an intentionally “narrow” manner so as to “not disturb the application of Smith or Miller.” 585 US at ___, 

. Carpenter did not purport to revolutionize the
third-party doctrine, but instead relied on a line of precedent establishing a right to privacy in an individual’s physical movements to establish a specific instance where an
individual retained a privacy interest in GPS information
maintained by a third party.
         There is no such line of precedent supporting an
expectation of privacy in the results of defendant’s medical
blood draw. Defendant’s medical blood draw instead implicates case law establishing that an individual’s right to privacy in medical records is not absolute. Ferguson, 

 n 24; Miller, 

; see also Whalen v. Roe,

, 

, 

 (1977) (explaining that “disclosures of private medical information to doctors, to hospital personnel, to insurance companies, and to
public health agencies are often an essential part of modern medical practice even when the disclosure may reflect
unfavorably on the character of the patient”). In addition to
being unsupported by precedent, the specific disclosure of
a BAC test result contemplated by ORS 676.260 is limited
in nature and circumstance and differs significantly from
months of GPS data revealing an individual’s every physical
movement. Information disclosed pursuant to that reporting requirement is limited to a specific test result in circumstances where the patient is believed to have been drinking
and driving. Where the underlying nature of the relevant
information and implicated precedent do not suggest that
Carpenter’s “narrow” ruling encompasses a privacy interest
in the information subject to mandatory reporting at issue
here, Carpenter does not affect our analysis in Miller.
         Third, defendant asserts that his arguments are
distinct from those made by the defendants in Miller and
Fincher because defendant argues that ORS 676.260, as a
state statute, cannot act as a limitation on a privacy right
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protected by the Fourth Amendment. Although defendant
is correct that, generally, state laws cannot negate a recognized privacy interest under the Fourth Amendment, that
argument does not address whether the existence of ORS
676.260 helps reflect society’s understanding that such an
expectation of privacy is unreasonable in the first instance.
See Miller, 

 (explaining that legislation (the
Bank Secrecy Act) can reflect the legislature’s assumption
that there was no privacy interest in that information). The
defendant’s arguments in Miller left that question unaddressed, as do defendant’s arguments here. Miller, 

. Defendant’s invocation of the general principle that state law cannot supplant constitutional standards
therefore does not affect the controlling nature of Miller on
this case.
        Thus, as we concluded in Miller, defendant did not
have a reasonable expectation of privacy in the results of
his medical blood draw under the limited circumstances
addressed by ORS 676.260, and the trial court did not err in
denying his motion to suppress the medical blood draw.
                       CONCLUSION
         In sum, the trial court did not abuse its discretion
in granting the state’s motion for a continuance. The trial
court did, however, err in denying defendant’s motion in
limine to exclude the medical blood draw based on defendant’s objection to the inadequate chain of custody, which
was not harmless with respect to the DUII conviction.
Finally, as explained in Miller, which controls in this case,
defendant does not have a privacy interest in his blood-alcohol test results under the Fourth Amendment, and the
trial court did not err in denying defendant’s motion to suppress on that basis. We therefore, as in Martin, reverse and
remand for further proceedings.
       Conviction on Count 1 reversed and remanded;
remanded for resentencing; otherwise affirmed.