State v. Martin

                                361

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).
     Submitted February 28, reversed and remanded August 10, 2022


                   STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
                ANDRE RICHARD MARTIN,
                    Defendant-Appellant.
               Josephine County Circuit Court
                    17CR51048; A173843

  Pat Wolke, Judge.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Anna Belais, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Joanna L. Jenkins, Assistant Attorney
General, filed the brief for respondent.
  Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
  ORTEGA, P. J.
  Reversed and remanded.
362                                          State v. Martin

        ORTEGA, P. J.
         Defendant appeals a judgment of conviction, following his conditional guilty plea, for driving under the
influence of intoxicants (DUII), ORS 813.010(4). In a single
assignment of error, he contends that the trial court erred
in denying his motion to suppress evidence on two separate grounds. First, defendant argues that evidence of his
refusal to perform field sobriety tests (FSTs) is inadmissible
under State v. Banks, 

, 

 (2019), and
Article I, section 9, of the Oregon Constitution. Second, he
asserts that evidence of a warrantless blood draw is inadmissible under Missouri v. McNeely, 

, 

, 

 (2013), and the Fourth Amendment
to the United States Constitution. We agree with both arguments and reverse and remand.
        We review the trial court’s denial of defendant’s
motion to suppress for legal error. State v. Portulano, 

, 

 (2022).
         Late one night in July 2017, Trooper Ziegler with
the Oregon State Police was on patrol in a rural part of
Josephine County when he saw a car parked on the road’s
shoulder. After locating the driver, defendant, walking
down the road, Ziegler stopped to talk to him. Suspecting
that defendant had been driving under the influence of
intoxicants, Ziegler asked him several times to perform
field sobriety tests, but defendant repeatedly refused and
was arrested for DUII. While en route to the Grants Pass
Sobering Center, defendant told Ziegler that he would not
agree to take a breath test once they arrived, so Ziegler
diverted to the hospital and instructed a phlebotomist to
collect a sample of defendant’s blood to preserve evidence of
his blood-alcohol content. Ziegler did not seek defendant’s
consent to administer the blood draw or consider seeking a
warrant because the district attorney in Josephine County
had instructed officers not to do so.
        Defendant first argues that the trial court erred
in denying his motion to suppress evidence that he refused
to perform FSTs. Article I, section 9, protects “the right of
the people to be secure in their persons, houses, papers,
and effects, against unreasonable search, or seizure.” An
Nonprecedential Memo Op: 

 (2022)             363

officer’s conduct in administering FSTs constitutes a search
under Article I, section 9. State v. Nagel, 

, 

 (1994). A person’s refusal to consent to a warrantless search may not be admitted as evidence of the person’s guilt in a criminal trial. Banks, 

.
In Banks, the Supreme Court extended that protection to
a person’s refusal to consent to a breath test, holding that,
under Article I, section 9, administering a breath test constitutes a search that must be supported by a warrant or a
legally valid exception to the warrant requirement. 

. The court rejected the state’s argument that a person’s refusal to consent to the breath test should nonetheless
be admissible if the state can establish another lawful basis
to conduct the warrantless search, including probable cause
and exigent circumstances. 

. The court, setting forth a new test, explained that a breath-test refusal is
admissible against a defendant in a DUII prosecution if the
state “demonstrate[s] that the officer’s question could reasonably be understood only as a request to provide physical
cooperation and not as a request for constitutionally-significant consent to search.” 

.
         Here, defendant argues that Banks is equally applicable to refusals to perform FSTs. He further contends that,
under Banks, the state failed to establish that his refusal
to perform the FSTs did not constitute the invocation of his
constitutional right to be free from a warrantless search,
because Ziegler’s multiple requests were ambiguous as to
whether he was seeking defendant’s physical cooperation to
submit to the FSTs with no constitutional significance or
sought consent to search with constitutional implications.
The state concedes that, on the particular facts of this case,
the record is insufficient under Banks to support a finding
that defendant would have understood that he was not being
asked for voluntary, constitutionally significant consent.
Having reviewed the record, we agree with the parties for
the same reasons. See Banks, 

 (concluding that
the state did not meet its burden to establish the admissibility of the defendant’s breath-test refusal where the officer’s
questioning was ambiguous as to whether he was seeking
the defendant’s consent or physical submission). We therefore accept the state’s concession that the trial court erred in
364                                           State v. Martin

denying defendant’s motion to suppress defendant’s refusal
to consent to the FSTs and reverse and remand.
         Defendant additionally argues that the trial court
erred in denying his motion to suppress the warrantless
blood draw because the state failed to establish the existence of an exigency as an exception to the warrant requirement under the Fourth Amendment and McNeely. The
Fourth Amendment provides, in relevant part, “The right
of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon
probable cause ….” US Const, Amend IV. “[A] warrantless
search of the person is reasonable only if it falls within a
recognized exception,” including “when the exigencies of the
situation make the needs of law enforcement so compelling
that a warrantless search is objectively reasonable under
the Fourth Amendment.” McNeely, 

 (internal quotation marks omitted). “[T]he state has the burden
to show, under the specific facts and circumstances of the
case, that the exigency exists.” Portulano, 

(discussing McNeely).
         McNeely resolved a split of authority on the issue
of whether the natural dissipation of alcohol in the bloodstream constitutes a per se exigency justifying a warrantless,
nonconsensual blood draw under the Fourth Amendment,
holding that it does not. 

. Instead, the
Court concluded that “[w]hether a warrantless blood test of
a drunk-driving suspect is reasonable must be determined
case by case based on the totality of the circumstances.”

. The Court discussed several nonexclusive factors
that are relevant to that determination, including: “(1) the
availability of a magistrate; (2) the need for police to attend
to and investigate a car accident; (3) technology that enables
police to secure warrants quickly; (4) the procedures for
obtaining a warrant; and (5) other practical problems that
prevent law enforcement from obtaining a warrant within a
timeframe that still preserves the evidence.” Portulano, 

 (citing McNeely, 

).
        McNeely rejected the argument that “a warrantless
blood draw is permissible if the officer could not secure a
Nonprecedential Memo Op: 

 (2022)            365

warrant (or reasonably believed he could not secure a warrant) in the time it takes to transport the suspect to a hospital or similar facility and obtain medical assistance,” noting
that such an approach would be functionally equivalent to
a “modified per se rule.” McNeely, 

. Rather,
an officer’s reasonable belief that obtaining a warrant will
not be significantly faster than obtaining the suspect’s blood
is just one consideration under the totality of the circumstances. 

.
         In Portulano, we recently addressed “the proper
consideration of the availability and use of electronic warrant procedures—or lack thereof—in the calculation of exigency for warrantless DUII blood draws” under McNeely and
the Fourth Amendment. Portulano, 

. The
DUII investigation in that case involved a high-speed chase
at night in a rural part of Josephine County that ended
when the defendant crashed, flipping his car upside down
and trapping himself in the driver’s seat. 

. At the
hospital, one of the investigating troopers instructed a phlebotomist to perform a warrantless blood draw to preserve
evidence of the defendant’s blood-alcohol content. 

.
         At the hearing on the defendant’s motion to suppress the warrantless blood draw, the troopers involved in
the incident provided extensive testimony. 

.
The trial court denied the defendant’s motion, concluding
that the state had established a sufficient exigency under
the Fourth Amendment. 

. In ruling, the court
focused on the amount of time that had passed between the
officers developing probable cause and when the warrantless blood draw was administered and that in October 2016,
the night of the incident, Josephine County did not have any
procedures in place to obtain electronic or telephonic warrants. 

.
         Viewing the record in light of McNeely, we disagreed
and reversed. We explained that, at the time of the incident,
the troopers had the tools and infrastructure available to
utilize a remote warrant process, judicial officers were available in Josephine County to issue warrants remotely, and
the Oregon legislature has permitted the use of telephonic
and electronic search warrants since 1973, ORS 133.545(7),
366                                                         State v. Martin

(8)(a). 

. We further concluded that, although the
accident weighed in favor of an exigency, the accident was
not dispositive because the state presented no evidence that
“preparing a warrant application was incompatible with
management of the accident scene.” 

. We found
“most critical[ ]” the evidence that the troopers “at the time
of this stop were operating as if there was a per se exigency
rule for warrantless blood draws, well after McNeely had
established that there was not.” 

.
    “The record is replete with testimony that the same [troopers], when operating in Jackson County, would apply for a
    warrant, but in Josephine County they would categorically
    forgo a warrant and rely solely on dissipation exigency to
    perform a warrantless blood draw. With over 40 years of
    combined experience in Josephine County, the three [troopers] testified that, while on patrol in Josephine County, none
    of them had ever applied for a search warrant to obtain a
    blood draw following a refusal. In accord with that practice,
    on the night of the arrest at issue here, despite the fact
    that numerous officers were on the scene and available,
    the [troopers] did not even discuss applying for a search
    warrant. In short, at the time of this stop, when it came
    to DUII investigations in Josephine County, rather than
    exigency arising in the regular course of business, exigency
    was the regular course of business.”

 (emphases in original).
         We therefore concluded that, because “McNeely does
not permit a functional per se exigency,” the state had failed
to satisfy its burden to establish an exigency that justified
the warrantless blood draw under the Fourth Amendment.

.
         Here, following a hearing in which Ziegler testified, the trial court denied defendant’s motion to suppress
the warrantless blood draw. The court concluded that the
state sufficiently established an exigency under McNeely,1
finding that a reasonable officer in Ziegler’s position could
have concluded that seeking a warrant on the night of the
incident would have created significant delay based on the
    1
      The trial court did not have the benefit of Portulano, which issued after it
ruled.
Nonprecedential Memo Op: 

 (2022)           367

amount of time that had already passed since defendant’s
last drink and the complications in seeking a warrant at the
time because Josephine County did not have procedures for
obtaining either telephonic warrants or late-night electronic
warrants. Considering the record in light of McNeely and
Portulano, we conclude that the trial court erred.
         First, Ziegler testified that, if he had attempted to
seek a warrant, he would have had to contact the on-call
district attorney to determine “how they [would] want
to contact an on-call PC judge.” Likewise, the trial court
noted in its written order that Ziegler “did not know how he
would have presented the warrant application to an on-call
probable cause judge.” That evidence permits the inference
that Josephine County had on-call judges to issue search
warrants in July 2017. However, the state failed to present
evidence that one would not have been available to issue a
warrant on the night of the incident. See Portulano, 

 (“[W]e know from this record that judicial officers were available in Josephine County [in October of 2016]
to issue warrants remotely. The state offered no testimony
that they were unable to contact a judicial officer.”).
        Second, it is uncontested that the incident here
did not involve a car accident or other emergency requiring Ziegler’s attention so as to prevent him from seeking a
warrant.
          Third, the state failed to present evidence that
Ziegler lacked the technology, such as an onboard computer
or cell phone, that would have enabled him to secure a telephonic or electronic warrant quickly from his patrol vehicle.
See, e.g., Portulano, 

 (the record showed
that the troopers “had the tools and infrastructure available
to them [in October 2016] to utilize the legislatively authorized remote warrant process,” including police vehicles
with “onboard computers, radios, and phones”).
        Fourth, although Josephine County did not have
procedures in place to obtain telephonic warrants or late-night electronic warrants in July 2017, the state failed to
provide evidence about the circumstances supporting the
absence of those procedures. When the state asserts the
existence of an exigency based on the lack of procedures
368                                           State v. Martin

for obtaining telephonic or late-night electronic warrants,
the state cannot meet its burden of proof to establish that
exception to the warrant requirement under the Fourth
Amendment without providing any evidence about the circumstances underlying the absence of those procedures. See
Portulano, 

 (“We do not foreclose the possibility that a record could establish that the resource constraints of a county prevented seeking a telephonic warrant,
but such a record needs to be made in the first instance for
us to say that the state has carried its burden.”).
         Fifth, other than the lack of procedures in place for
obtaining late-night electronic or telephonic warrants in
Josephine County, the state did not provide any evidence
that other practical problems prevented Ziegler from obtaining a warrant within a timeframe that would ensure preservation of the blood-draw evidence.
         Sixth, and most critically as in Portulano, Ziegler’s
decision to not seek a warrant before obtaining defendant’s
blood sample was based on a policy in Josephine County
that effectively treated the dissipation of alcohol as a per se
exigency. See Portulano, 

 (“the totality
of the circumstances includes the availability of electronic
warrant procedures, the availability of judicial magistrates,
and the purposeful choice by law enforcement countywide
to decline to ever, under any circumstance, exercise that
option”). Ziegler testified that he had been investigating
DUIIs in Josephine County since 2015, but that he had
never applied for either a telephonic warrant or blood-draw
warrant in that county. The only search warrants he had
ever applied for in Josephine County “had no exigency.”
However, he had sought telephonic warrants for blood draws
in neighboring Jackson County and had sought warrants
from on-call judges in Klamath County. Ziegler admitted
that his decision to obtain the warrantless blood draw following defendant’s breath-test refusal was not based on
his own independent judgment but was due to the district
attorney having instructed officers to not seek them and
based on the “standard procedure” in Josephine County. As
a result, Ziegler’s decision to obtain the warrantless blood
draw was based on a policy that treated the dissipation of
alcohol as effectively a per se exigency and was not based
Nonprecedential Memo Op: 

 (2022)           369

on an independent assessment of whether the specific circumstances beyond the dissipation of alcohol justified forgoing the warrant process, which is unconstitutional under
McNeely. See Portulano, 

 (Lagesen, C. J.,
concurring) (“the prevailing practice in Josephine County
… under which the dissipation of alcohol was treated as
a per se exigency that permitted a warrantless blood draw
in any drunk-driving case,” is a “practice [that] is squarely
unconstitutional under McNeely”); 

 (“the officers in
the field made no affirmative judgment about whether exigencies excused obtaining a warrant because they adhered
to an unconstitutional practice of not seeking warrants for
blood draws in drunk-driving cases”). Accordingly, the court
erred in concluding otherwise.
        In sum, the trial court erred in denying both defendant’s motion to suppress his refusal to perform the FSTs
under Article I, section 9, and defendant’s motion to suppress
the warrantless blood draw under the Fourth Amendment.
Because defendant entered a conditional guilty plea, we
reverse and remand without engaging in a harmless error
analysis. See State v. Lowell, 

, 

 (2015) (no harmless error analysis on appeal from conditional guilty plea).
        Reversed and remanded.