362 July 30, 2025 No. 700
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
RACHAEL RAE LYNN GONZALEZ,
Defendant-Appellant.
Lincoln County Circuit Court
22CR25898; A180864
Amanda R. Benjamin, Judge.
Argued and submitted October 15, 2024.
Anna R. Johnson, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Oregon Public
Defense Commission.
Erica L. Herb, 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, Lagesen, Chief Judge,
and Hellman, Judge.*
HELLMAN, J.
Affirmed.
______________
*
Lagesen, Chief Judge vice Mooney, Senior Judge
Nonprecedential Memo Op: 342 Or App 362 (2025) 363
HELLMAN, J.
Defendant appeals a judgment of conviction, entered
after a conditional guilty plea, for one count of driving under
the influence of intoxicants, ORS 813.010(4) (DUII). In a
single assignment of error, defendant argues that the trial
court erred in denying her motion to suppress evidence.
“We review a trial court’s denial of a motion to suppress
for legal error, and we are bound by the trial court’s factual
findings if there is any constitutionally sufficient evidence
in the record to support them. When the trial court did not
make express factual findings, and there is evidence from
which the trial court could have found a fact in more than
one way, we will presume that the trial court decided the
facts consistently with its legal conclusion.”
State v. Iams, 336 Or App 830, 832,
562 P3d 625 (2024)
(internal quotation marks and citation omitted).
Defendant was charged with DUII after she drove
her vehicle onto the shoulder of a highway, causing it to flip.
Prior to trial, defendant moved to suppress statements that
she had made to police and results of any field sobriety tests
(FSTs), arguing that she “did not consent to perform those
tests.” After a suppression hearing, the trial court issued
an opinion and order denying defendant’s motion. The trial
court determined “that the defendant voluntarily consented
to perform field sobriety tests” and reasoned:
“When [the trooper] approached her again he asked if she
felt ok to stand, she then complied voluntarily. She was
again given the opportunity to break contact with the
trooper to go with paramedics before she continued to participate in the first field sobriety test. Only the first test
was performed before a Miranda warning was given.”
Defendant then entered a conditional guilty plea, and this
appeal followed.
On appeal, defendant contends that the court erred
in denying her motion to suppress evidence because she “did
not voluntarily consent to perform FSTs” and because the
trooper “did not have sufficient probable cause to compel
defendant to complete FSTs.” Because it is dispositive, we
begin with defendant’s argument that she did not voluntarily
364 State v. Gonzalez
consent to the FSTs but rather “merely acquiesced to [the
trooper’s] authority.”
“A warrantless search by the police is reasonable
under Article I, section 9, [of the Oregon Constitution] when
the search falls into one or another of the recognized exceptions to the warrant requirement. One such exception is consent.” State v. Paulson, 313 Or 346, 351,
833 P2d 1278 (1992)
(internal quotation marks and citation omitted; emphasis
in original). Under that exception, “the state must prove by
a preponderance of the evidence that defendant voluntarily
consented to perform [FSTs].” State v. Finney,
154 Or App
166, 171,
961 P2d 256 (1998). “In assessing the voluntariness of the consent, we examine the totality of the circumstances to determine whether defendant’s consent was given
by an act of free will or was the result of coercion, express
or implied.”
Id. at 172 (internal quotation marks omitted).
“Simply acquiescing in an officer’s exercise of authority does
not constitute consent.”
Id. at 171.
“Viewing the facts consistently with the court’s
express and implicit findings,” we conclude that “the totality
of the circumstances establishes that defendant’s consent
was freely and voluntarily given.” Iams, 336 Or App at 841.
Here, the trial court admitted into evidence body camera
video from both the trooper and a deputy who responded
to the crash. Those videos showed that, after the trooper
initially contacted defendant, he spoke to medical personnel and to defendant’s boyfriend. After defendant repeatedly
declined medical attention, the trooper spoke to defendant
again, and the following exchange occurred:
“[THE TROOPER]: Okay, now I want you to look at
me, okay. Now you had one beer today?
“[DEFENDANT]: Uh-huh.
“[THE TROOPER]: Okay. Are you feeling any sort of
any pain in your—any pain in your, you know any pain at
all—
“[DEFENDANT]: No.
“[THE TROOPER]: —any dizziness? Okay.
“[DEFENDANT]: (nods no)
Nonprecedential Memo Op: 342 Or App 362 (2025) 365
“[THE TROOPER]: Okay. So, I just want to check for
impairment because you said you had one beer, and from
what’ve heard from the witnesses and you kind of swerved
off the road. Can we be done with that cigarette; if you need
to take one last drag, I understand.
“[DEFENDANT]: Yeah.
“[THE TROOPER]: Okay. Let me know when you’re
ready, okay.
“[DEFENDANT]: Okay. What do need from me?
“[THE TROOPER]: Okay, so what I want you to do is
I’ll have you put that cigarette out after you take a drag.”
The trooper then administered the horizontal gaze nystagmus (HGN) test. According to the trooper, defendant was
“cooperative with everything [he] was asking” and did not
decline to perform the test or “stop[ ].” After defendant completed the test, the trooper conferred with the deputy and
provided defendant the Miranda warnings. The trooper then
asked defendant, “Having just been in an accident, do you
feel like you are physically capable of conducting any physical tests?” Defendant’s response was inaudible. Defendant
then repeated the HGN test and performed additional FSTs.
We conclude that “[t]here was nothing coercive
about the encounter.” Iams, 336 Or App at 841. Defendant
had repeatedly declined medical attention, was “cooperative,” and “the encounter occurred openly” on the side of the
highway, “not in a confining environment.”
Id. at 842. “There
simply was no coercion or compulsion, express or implied, in
[the trooper’s] request,” State v. Maddux,
144 Or App 34,
41,
925 P2d 124 (1996), or “evidence that the surrounding
circumstances influenced defendant’s decision to consent to
perform the tests.” Finney,
154 Or App at 175.
Seeking a different result, defendant points to the
initial exchange that she had with the trooper. Specifically,
defendant argues that, when the trooper initially stated
that he wanted to “check [her] eyes,” defendant responded
that she “[didn’t] want to do anything that [she didn’t] have
to do.” Consequently, defendant contends that their second
exchange, quoted above, demonstrates that the trooper was
“persist[ent] about checking for impairment,” that defendant
366 State v. Gonzalez
“had no choice but to comply with [the trooper’s] directives,”
and that “[h]is phrasing left no room for defendant to give a
negative response.” We reject those arguments. The trooper
“was under no obligation to advise defendant that [she] could
decline the request to perform field sobriety tests. There is
nothing in the … record that supports any conclusion other
than that [the trooper’s] words to defendant were phrased as
a simple request, not as an order, command or directive.”
Maddux, 144 Or App at 40-41. Therefore, we conclude that
defendant voluntarily consented to the FSTs. See Iams,
336
Or App at 841 (so concluding).
Because we conclude that defendant voluntarily
consented to the FSTs, we need not reach defendant’s argument that the trooper lacked probable cause to order her
to perform the tests. The trial court did not err in denying
defendant’s motion to suppress.
Affirmed.
