State v. True

                                      621

        Argued and submitted May 12, 2021, affirmed March 15, 2023


                        STATE OF OREGON,
                         Plaintiff-Respondent,
                                   v.
                     JEFFREY BRIAN TRUE,
                        Defendant-Appellant.
                   Jefferson County Circuit Court
                        19CR01872; A172287
                                  

     Defendant appeals from a judgment of conviction for driving under the influence of intoxicants (DUII), ORS 813.010(4), arguing that the trial court erred in
denying his motion to suppress for two reasons. First, he contends that he was
unlawfully seized in violation of the state constitution when a deputy approached
and questioned him in his parked vehicle. Second, he argues that the deputy
failed to comply with the statutory and administrative regulations when administering a breath test. Held: Under the totality of circumstances, the deputy’s
actions were more akin to an officer seeking cooperation and requesting information than those of an officer intentionally and significantly restraining an
individual’s freedom of movement through physical force or some show of authority. Further, the breath test was conducted in accordance with the statutory and
administrative requirements. Accordingly, the trial court did not err.
    Affirmed.



    Annette C. Hillman, Judge.
   Lindsey Burrows argued the cause for appellant. Also on
the brief was O’Connor Weber LLC.
   Timothy A. Sylwester, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman, Solicitor
General.
  Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
    POWERS, J.
    Affirmed.
622                                              State v. True

        POWERS, J.
         Defendant appeals from a judgment of conviction
for driving under the influence of intoxicants (DUII), ORS
813.010(4), arguing that the trial court erred in denying his
motion to suppress. First, he asserts that he was unlawfully
seized in violation of the state constitution when the deputy approached and questioned him as he was attempting
to order food in a drive-through. Second, he argues that,
because the deputy did not comply with the statutory and
administrative regulations when administering a breath
test, the results of that test should have been suppressed.
For the reasons that follow, we conclude that the deputy did
not stop or seize defendant when he began the conversation
with defendant and further conclude that the manner in
which the test was administered did not provide a basis for
suppression. Accordingly, we affirm.
         We review the trial court’s ruling denying defendant’s motion to suppress for errors of law. State v. Maciel-Figueroa, 

, 

 (2017). In so doing,
we are bound by the court’s factual findings if there is constitutionally sufficient evidence in the record to support them.
State v. Ehly, 

, 

 (1993). Where the
court did not make express findings, and there is evidence
from which the court could have found a fact in more than
one way, we presume that the court decided the facts consistently with its ultimate conclusion. 

         In the following two sections—which correspond
to defendant’s two arguments—we summarize the facts in
accordance with those standards, separately discussing the
facts relevant to each argument.
       I. WHETHER DEFENDANT WAS SEIZED
           UNDER ARTICLE I, SECTION 9
        Shortly after 11:00 p.m. in early January, Deputy
Aldred received a complaint about someone in a pickup
truck, who was honking, tailgating, and had run off the road
and into a field while trying to pass in a no-passing zone.
Driving his marked patrol vehicle, Aldred drove toward
the reported location and noted that the roads were icy and
that the weather was foggy. He located the truck driven by
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defendant traveling in the opposite direction. Without activating his overhead lights, Aldred turned around, passed
two vehicles, and started following directly behind defendant. He followed defendant’s vehicle for about two miles,
during which time he did not observe defendant commit
any traffic violations. Defendant eventually pulled into a
McDonald’s drive-through, and Aldred pulled into a parking spot about 50 feet away. Although it was not obvious
from viewing the exterior, Aldred knew from past experience that the restaurant was already closed. Parked in one
of the drive-through ordering lanes, defendant was at an
order box with his window rolled down, apparently waiting
to place an order. Aldred, who was wearing a uniform and
had his firearm holstered, approached defendant’s truck on
foot and stood on the curb behind the order box to speak to
defendant through the open driver’s side window.

         Aldred introduced himself and explained that he
was making contact due to a driving complaint and asked if
defendant had driven off the road. Defendant admitted that
he had run off the road and into a field. Aldred told defendant
that the person making the driving complaint had also said
that the truck was tailgating and passing in a no-passing
lane. Aldred informed defendant that he had followed
him to McDonalds, but had not observed any traffic violations, and that he “was just making contact and it wasn’t a
stop.”

         As he interacted with defendant, Aldred observed
that defendant had slurred speech and bloodshot, watery
eyes. Aldred asked defendant where he was going and where
he had come from and further asked if he had been drinking or using other drugs. Defendant answered Aldred’s
questions, including telling the deputy that he had not been
drinking or using drugs. At some point, a second officer
arrived and parked nearby but did not activate his overhead
lights. As Aldred spoke with defendant, a gust of wind blew
towards him, and Aldred smelled alcohol coming from the
vehicle. Aldred again asked defendant if he had been drinking, and defendant told Aldred that he had had two beers.
From that point on, Aldred believed the encounter turned
into a stop.
624                                                             State v. True

         Aldred asked defendant more questions about the
alcohol and asked defendant for his driver’s license, which
he provided. Defendant declined Aldred’s request to conduct
a field sobriety test. At that point, Aldred believed he had
probable cause to arrest defendant and instructed defendant to step out of his vehicle. When Aldred asked again
if defendant would consent to field sobriety tests, defendant changed his mind and agreed to perform the tests.
Defendant’s performance on those tests indicated to Aldred
that he was intoxicated. Aldred read defendant his Miranda
rights, asked him several questions, and arrested him for
DUII and reckless driving. Aldred then transported defendant to the Jefferson County Jail.
         Before trial, defendant moved to suppress the evidence obtained during the stop, contending that Aldred
unlawfully seized him without reasonable suspicion or probable cause. The trial court denied the motion to suppress, and
defendant entered a conditional plea of guilty as provided by
ORS 135.335(3) to one count of driving under the influence
of intoxicants, ORS 813.010(4), and reserved for appeal the
denial of his motion to suppress. The trial court dismissed
the reckless driving charge, and defendant timely appealed.
        On appeal, defendant argues that the trial court
erred in denying his motion to suppress, renewing his contention that he was unlawfully seized when Aldred first
approached and questioned him, viz., before Aldred smelled
alcohol and developed reasonable suspicion or probable
cause. The state remonstrates that Aldred did not seize
defendant when he approached him in the McDonald’s drive-through but was instead engaged in a mere encounter until
the point that Aldred observed that defendant appeared to
be intoxicated.
         Article I, section 9, of the Oregon Constitution protects individuals from unreasonable searches and seizures.1
   1
       Article I, section 9, provides:
       “No law shall violate the right of the people to be secure in their persons,
   houses, papers, and effects, against unreasonable search, or seizure; and no
   warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or
   thing to be seized.”
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The Supreme Court has recognized that there are an
infinite variety of encounters between law enforcement
and individuals, but only some of those encounters implicate the state constitutional protection against unreasonable seizures. Thus, courts refer to three general categories of police-civilian interactions under Article I, section 9:
(1) mere encounters; (2) stops; and (3) arrests. State v. Leiby,

, 

 (2018). The first category allows officers to approach individuals in public places,
seek their cooperation, and request information without
any constitutional justification. State v. Backstrand, 

, 

 (2013). However, where an officer
restrains the individual’s liberty—either through physical
force or through some show of authority—the interaction
shifts out of the first category and becomes a stop, which is a
type of seizure, or becomes an arrest. State v. Ashbaugh, 

, 

 (2010). In such cases, the officer’s
imposition of restraint must be justified by probable cause
or reasonable suspicion. 

 (explaining that stops generally
must be justified by reasonable suspicion that the person has
been involved in criminal activity and arrests must be justified by probable cause that the individual has committed a
crime).
        Here, the parties agree that, before Aldred saw
signs of intoxication, he had neither reasonable suspicion
nor probable cause. Thus, the issue is whether Aldred, in
approaching and questioning defendant when he was in the
drive-through, restrained defendant’s liberty either through
physical force or through some show of authority such that
the interaction shifted from a mere encounter to a seizure.
We conclude that he did not.
         A stop occurs, “(a) if a law enforcement officer intentionally and significantly restricts, interferes with, or otherwise deprives an individual of that individual’s liberty or
freedom of movement; or (b) whenever an individual believes
that (a), above, has occurred and such belief is objectively
reasonable under the circumstances.” Ashbaugh, 

 (internal quotation marks omitted). Importantly, the
application of that test is fact specific and requires an examination of the totality of the circumstances. Backstrand, 

.
626                                             State v. True

         In arguing that his interaction with Aldred constituted a stop, defendant compares the facts of this case to
those presented in Leiby and argues that, like the defendant in that case, he was seized. In Leiby, we evaluated the
totality of the circumstances and noted two key aspects of
the encounter between the defendant and law enforcement
that led us to the conclusion that he was seized. 

. Neither of those considerations, however, aids defendant’s argument in this case.
         First, we emphasized the deputy’s “dogged pursuit”
of the defendant in Leiby. 

 After making eye contact with
the deputy on the roadway, the defendant seemed startled
and turned into a parking lot. 

. The deputy followed
by turning into another parking lot where he observed as
the defendant went through a coffee stand without ordering
and then proceeded back onto the roadway. 

 The deputy
followed and pulled his patrol car back onto the roadway
behind the defendant’s vehicle. 

. The defendant
saw the deputy behind him again and quickly turned into
another parking lot and parked. 

 Again, the deputy followed. 

 In explaining why the deputy’s pursuit contributed to the circumstances that led us to conclude that he
was seized, we noted that the defendant was “aware of
[the deputy’s] obvious and open following, [and] eventually
relented and parked.” 

.
         In this case, however, Aldred followed defendant for
about two miles before pulling in and parking at the same
McDonald’s where defendant had stopped in the drive-through. Although Aldred’s pursuit may have been obvious
and open, the record is devoid of any indication that defendant was aware that Aldred was following him, much less
that he pulled over as a way of relenting to Aldred’s pursuit.
Further, even if defendant, in the dark and through the fog,
had noticed that law enforcement was behind him, there
is nothing to support the notion that defendant believed
that Aldred was following him specifically. To the contrary,
defendant pulled into McDonalds and was attempting to
order food, suggesting that he was going about his business
(despite the restaurant being closed) without concern for
Aldred’s pursuit. Accordingly, we view the circumstances
here as distinct from the circumstances presented in Leiby,
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where “both parties knew defendant was aware he was
being followed, and that defendant was now ‘caught’ and
must stay to explain himself.” Id. at 298. Thus, in our view,
a reasonable person in defendant’s position would not have
felt that the two miles that Aldred tailed defendant caused
a significant restraint on his freedom of movement given the
totality of the circumstances.
         The second key aspect that we noted about the
encounter in Leiby was the deputy’s immediate statement
to the defendant upon contacting him. After the defendant
had relented and pulled over, the deputy approached his
vehicle and asked, “Is there any reason or do you want to
tell me why you’re trying to avoid me?” Id. That question
strongly implied to the defendant that he had an obligation
to explain himself, especially given the choice of the term
“avoid.” Id. When viewed in conjunction with the deputy’s
“dogged pursuit,” which defendant was aware of, it would
lead a reasonable person to believe that they were not free
to leave. Id. at 298-99.
         This case is different. Here, defendant was in the
drive-through with his window rolled down when Aldred
parked about 50 feet away and approached on foot. Aldred
explained that he was contacting defendant due to a complaint, and asked if defendant had driven off the road,
tailgated, and passed in a no-passing zone. We agree with
defendant that Aldred’s initial statements and questions
would have conveyed to a reasonable person that Aldred was
investigating defendant’s driving and is a “pertinent consideration in evaluating” whether the encounter was converted into a stop. State v. Newton, 

,

 (2017). As we further explained in Newton,
however, questions indicating an investigatory focus are not
necessarily dispositive. Id.; see also State v. Anderson, 

, 

 (2013) (explaining that, where
the officers’ explanation for why they contacted defendant
may have conveyed possible suspicion that the defendant
was involved in criminal activity, it did not communicate an
exercise of authority required for a stop when considering
the context including the officers’ tone and manner, as well
as the duration of the encounter). Additionally, in this case
Aldred tempered his questions about defendant’s driving by
628                                             State v. True

telling defendant that he had not observed any traffic violations, that he was making contact due to the report he
received, and explicitly telling defendant that it was not a
stop. In short, the first key aspect that led us to conclude
that the defendant in Leiby was seized is lacking here, and
the second key aspect is less coercive.
          Finally, to the extent that defendant’s argument
relies on State v. Reyes-Herrera, 

, 

 (2021),
we view the facts of that case as distinguishable from this
case. As the court explained in Reyes-Herrera, not all verbal
questioning is equally coercive. 

. The officer in that
case questioned the defendant about whether he had purchased drugs and was in possession of drugs, and further
requested to search the defendant, all of which created a
more coercive situation under the circumstances of that case
when compared to Aldred’s questions about defendant’s driving in this case. When evaluating the totality of the circumstances in this case, Aldred’s actions were more akin to an
officer seeking cooperation and requesting information than
those of an officer intentionally and significantly restraining an individual’s freedom of movement through physical
force or some show of authority. Aldred tempered his questions as described earlier and explicitly told defendant that
it was not a stop. Accordingly, we conclude that defendant
was not seized under the circumstances presented in this
case and turn to his second basis for challenging the denial
of his motion to suppress.
      II. WHETHER THE BREATH TEST RESULTS
          SHOULD HAVE BEEN SUPPRESSED
        Even if he was not seized for purposes of the state
constitution, defendant maintains that the trial court erred
in denying his motion to suppress because Aldred did not
comply with the statutory and administrative requirements
when administering the breath test. We set out the facts
applicable to that issue consistent with our standard of
review described above.
         After transporting defendant to the Jefferson County
Jail, Aldred prepared defendant for a breath test. He began
by visually inspecting the inside of defendant’s mouth to
ensure that it was empty. The only thing that Aldred observed
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in defendant’s mouth was residue from chewing tobacco,
which he described as “a couple little strands of chew.”
Aldred then began the 15-minute observation period. See
OAR 257-030-0130(2)(a) (requiring the operator to be certain that the individual has not taken anything by mouth,
vomited, or regurgitated liquid from the stomach into
the mouth “for at least fifteen minutes before taking the
test”).
        During the observation period, defendant asked if
he could have water to rinse his mouth:
     “[DEFENDANT]: Can I have some water to rinse out
  the Copenhagen that was in my mouth?
     “DEPUTY ALDRED:         Yeah. We’ll have him get you
  some water.
     “[DEFENDANT]:       Yeah.
      “DEPUTY ALDRED: It’s probably going to be a little
  bit. If not, we—I might have to go get it for you because
  they went and did a round, and that’s why they’re not here
  so—
     “[DEFENDANT]:       Yeah.
     “DEPUTY ALDRED: —I can’t make any guarantees
  but I’ll try to definitely get you some before, okay?
     “[DEFENDANT]: Sure. Yeah. I just didn’t want anything else in my mouth when I do this.
     “DEPUTY ALDRED: Well, understandable, and I
  didn’t see anything in there. You got a little bit of a—just
  kind of the residue stuck in there.
     “[DEFENDANT]:       Sure.
     “DEPUTY ALDRED:         From using chew it gets stuck in
  your teeth and stuff.”
Defendant asked for a cup of water a second time, but Aldred
told him that the machine was ready and that he would
get him water upon completing the test. Aldred checked
defendant’s mouth one last time and then administered the
breath test using an Intoxilyzer 8000 machine. Defendant
provided the required two breath samples, which revealed a
0.13 blood alcohol content.
630                                                State v. True

         ORS 813.160(1) establishes the requirements for a
breath test to be valid evidence in a prosecution for DUII
and authorizes the Oregon State Police to approve methods
of analyzing a person’s breath. ORS 813.160(1)(b); State v.
Leinweber, 

, 

 (2021). The
approved methods for performing a chemical analysis of a
person’s breath on the Intoxilyzer 8000 are set forth in OAR
257-030-0130, which provides, in part:
      “(2)   Pre-Test Requirement:
      “(a) The operator is certain that the subject has not
   taken anything by mouth (drinking, smoking, eating, taking medication, etc.), vomited, or regurgitated liquid from
   the stomach into mouth, for at least fifteen minutes before
   taking the test;
      “(b) There is no requirement that the operator be the
   person who makes observation of the subject. The person
   performing the Pre-Test Requirement (observation period)
   need not possess a permit for the testing of alcoholic content of blood;
      “(c) The Pre-Test Requirement (observation period)
   does not require that the subject rinse the mouth or remove
   dentures prior to providing a breath sample;
      “(d) The use of a mouthpiece by the subject during the
   testing sequence does not constitute a violation of the Pre-Test Requirement.”
(Boldface omitted.)
         Defendant argues that the results should have
been suppressed because Aldred violated the rule’s pre-test
requirement that he be certain that defendant had “not
taken anything by mouth” for at least 15 minutes before the
test. That is, defendant contends that “taken by mouth” is
not limited to the act of placing something in one’s mouth
during the 15-minute window. Rather, defendant maintains
that the rule means a test is invalid when the officer observes
the remnants of any substance in the person’s mouth prior
to the 15-minute observation period and fails to remove it.
Thus, in defendant’s view, the chewing tobacco residue that
Aldred saw in defendant’s mouth prior to the observation
period invalidates the test and requires suppression of the
results.
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         The test for determining whether an officer has
complied with the administrative rule is both subjective
and objective. State v. Barletta, 

, 

 (2003). First, the officer must form a subjective belief
that the subject has not engaged in any of the acts prohibited by the rule, and second, that belief must be objectively reasonable under the circumstances. 

 Here, Aldred
testified that he checked defendant’s mouth prior to the
start of the observation period and “didn’t see anything in
there,” but that defendant had “a couple little strands” of
tobacco residue stuck in his mouth. Aldred observed defendant for the entirety of the observation period and testified
that, during that period, defendant took nothing by mouth.
Thus, Aldred was subjectively certain that defendant took
nothing by mouth during the observation period, and, in
our view, that belief was objectively reasonable under the
circumstances.
         Context and legal precedent support that view. OAR
257-030-0130(2)(c) provides that “[t]he Pre-Test Requirement
(observation period) does not require that the subject rinse
the mouth or remove dentures prior to providing a breath
sample[.]” Because the primary purpose behind rinsing one’s
mouth is to remove a substance from the mouth, OAR 257-
030-0130(2)(a) and OAR 257-030-0130(2)(c), read together,
suggest that the agency did not intend that every particle of
foreign substance must be removed from the subject’s mouth
for the test results to be valid.
         Indeed, we made a similar determination in State v.
Goddard, 

, 

 (1987). In that case,
the defendant put chewing tobacco in his mouth while being
transported to jail but spat most of it out after arriving. 

. As in this case, the sergeant administering the breath
test observed the defendant for more than 15 minutes before
the test, the defendant asked to rinse his mouth but was not
given the opportunity, and the defendant had bits of chewing
tobacco in his mouth when the test was conducted. 

 The
trial court granted the defendant’s motion to suppress. 

On appeal, however, we reversed and explained, “Nothing in
the rule requires that a DUII suspect be allowed to rinse his
mouth during the pre-test waiting period. In fact, the rule
prohibits that.” 

632                                            State v. True

         Defendant responds that Goddard is either distinguishable or should be overruled. Goddard is distinguishable, he argues, because unlike the defendant there, he
does not contend that an officer must allow him to rinse his
mouth after using chewing tobacco before a breath test—
only that Aldred was required to be sure that the tobacco
residue was removed—and rinsing his mouth would have
been an effective way to do so. Regardless of what the defendant argued, however, Goddard stands for the position that
a breath test is not invalid because a defendant has bits of
chewing tobacco in his, her, or their mouth. Moreover, as
we have observed, the purpose of the rule “is to provide the
methodology designed to assure that breath test results are
accurate. However, there is nothing in the language of the
statutes or the rule that provides that the methodology must
guarantee that the test results are completely accurate.”
State v. Balderson, 

, 

 (1996)
(emphasis omitted). Accordingly, because we conclude that
the breath test was conducted in accordance with the statutory and administrative requirements, we reject defendant’s
second argument and conclude that the trial court did not
err in denying the motion to suppress.
        Affirmed.