No. 873 October 8, 2025 85
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
RICARDO BRISENO SANCHEZ,
Defendant-Appellant.
Marion County Circuit Court
22CR25511; A181984
J. Channing Bennett, Judge.
Submitted July 9, 2025.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Emma McDermott, Deputy Public Defender,
Oregon Public Defense Commission, filed the brief for
appellant.
Dan Rayfield, Attorney General, Benjamin Gutman, Solicitor
General, and Joanna L. Jenkins, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, Joyce, Judge, and
Hellman, Judge.
JOYCE, J.
Affirmed.
86 State v. Sanchez
JOYCE, J.
Defendant appeals a judgment of conviction for driving under the influence of intoxicants (DUII), ORS 813.010,
and refusing to take a breath test, ORS 813.095. Defendant
moved to suppress a warrantless blood draw that officers
obtained from defendant after he refused a breath test. The
trial court concluded that exigent circumstances justified
the warrantless blood draw and denied the motion to suppress. Defendant appeals. We conclude that the trial court
correctly concluded that exigent circumstances justified the
warrantless blood draw and affirm.
We review the denial of a motion to suppress for
errors of law, accepting the trial court’s express and implied
factual findings if sufficient evidence in the record supports
them. State v. Ehly, 317 Or 66, 75,
854 P2d 421 (1993). The
relevant facts are not in dispute on appeal.1 At 6:16 p.m.,
Keizer Police Officer Kowash responded to a report of a
car crash at a commercial parking lot. Kowash did not find
defendant at the commercial parking lot but was able to
track defendant to an apartment complex. Upon arrival at
the complex, Kowash saw the defendant in the driver’s seat
of the car involved in the crash. When Kowash activated his
overhead lights, defendant drove forward and struck a pole,
damaging his car.
Kowash approached defendant and observed that
defendant had bloodshot, watery eyes, and responded slowly
to commands. Kowash also noted an “overwhelming odor of
an alcoholic beverage” emanating from the car. Kowash told
defendant why he was stopping him and advised defendant
of his Miranda rights multiple times. Defendant indicated
that he did not understand his rights. Under the circumstances, Kowash did not attempt to conduct any field sobriety tests on defendant. Kowash arrested defendant and took
him to the Keizer police station.
At the station, just after 7:00 p.m., Kowash asked
defendant to provide a breath sample, and defendant
refused. Kowash decided to get a blood draw. Another officer
1
We draw the facts from the testimony and evidence at the hearing on defendant’s motion to suppress.
Cite as 344 Or App 85 (2025) 87
took defendant to a hospital where medical personnel drew
his blood at 8:18 p.m. Defendant’s blood alcohol concentration (BAC) was .30 percent.
As noted, defendant moved to suppress the results
of his blood draw, arguing that the officers were required to
first obtain a warrant and that their failure to do so violated
his rights under the Fourth Amendment to the United States
Constitution. At the hearing on the motion to suppress,
Kowash testified that he opted for a warrantless blood draw
because it would have taken too long to get a warrant first:
“[S]o there [were] a couple things. Just my observations of
him driving, as well as [the] urgency of knowing that—due
to my training experience, the blood alcohol dissipates from
the body at a rate of .015 percent an hour. And I believe at
that time we were losing evidence if we work to try to apply
for a warrant, as well as staffing issues, since there’s only
three people on duty. And I know from my experience working night shift patrol, that is the busiest time of the day is
right when you start, for a couple of hours at least.”
Kowash estimated that it takes him about two hours to complete a warrant application, which includes the time spent
writing the application, contacting the district attorney’s
office for review of the application, and after that review,
contacting a judge to review and sign the warrant. While
Kowash was familiar with submitting warrants electronically, he estimated that doing so would have taken him a bit
longer than a traditional warrant because he did not have
as much experience with “e-warrants.”
Kowash also explained that the Keizer Police
Department is small. It has four officers on day shift and
three officers on night shift. A shift change happens at
7:00 p.m., and the period between 7:00 p.m. to 11:00 p.m. is
a busy time for the officers. Kowash noted that one officer
was with defendant at the hospital as Kowash was going
off duty. If one of the remaining two night shift officers on
duty began to write the warrant application and follow that
process through, the department would have had only one
officer available to handle all other police work at that time.
The trial court denied defendant’s motion to suppress. It noted the limitations posed by the Keizer Police
88 State v. Sanchez
Department having only seven officers and no “warrant
department,” and that tying up two officers with defendant’s
case—leaving only one officer to deal with all other police
business in Keizer—would have been problematic. The court
also noted the exigency created by alcohol dissipating from
defendant’s bloodstream and credited Kowash’s testimony
that it would have taken several hours to obtain a warrant.
It considered that, even though alcohol dissipates at a known
rate, a blood sample drawn closer in time to when defendant
was stopped would be the best available evidence of his BAC
when he was driving; a three-hour delay for a warrant to
authorize a blood draw could have affected the outcome of
the case if defendant’s BAC had been close to .08 percent at
the time of the delayed draw. The trial court thus concluded
that the warrantless blood draw was justified by exigent
circumstances.
On appeal, defendant challenges that ruling.2
Axiomatically, a police-authorized blood draw is both a
search of a person and a seizure of that person’s blood under
the Fourth Amendment,3 State v. Portulano, 320 Or App
335, 350,
514 P3d 93 (2022), and therefore “ ‘implicates constitutional guarantees against unreasonable searches and
seizures’ ” under the Fourth Amendment,
id. at 345 (quoting State v. Milligan,
304 Or 659, 664,
748 P2d 130 (1988)).
A warrantless blood draw is unconstitutional unless it is
justified by an exception to the warrant requirement, such
as exigent circumstances. Missouri v. McNeely,
569 US 141,
148,
133 S Ct 1552,
185 L Ed 2d 696 (2013). The United
States Supreme Court has held that “the natural dissipation of alcohol in the bloodstream” alone does not establish
2
During defendant’s cross-examination of Kowash, the trial court took judicial notice of the warrant process in Marion County from its perspective and specifically how the Keizer Police Department procedures differed from other law
enforcement entities like the Salem Police Department. On appeal, defendant
argues that the trial court’s sua sponte judicial notice of the Marion County warrant process is not “part of the evidentiary record” and that we should not consider
it. We express no opinion on whether it is the type of information that may be judicially noticed, as defendant made no objection at the time. Had defendant objected,
the state might have been able to call a witness who was familiar with those court
processes and could have provided the same information. We do note, however, that
Kowash had described much of the warrant process in his testimony.
3
Defendant here expressly raises only a federal constitutional claim, so we
focus our analysis accordingly.
Cite as 344 Or App 85 (2025) 89
a per se exigency justifying an exception to the Fourth
Amendment’s warrant requirement.
Id. at 165. At the same
time, the Court has also recognized the constitutional significance of the state’s interest in BAC testing:
“The importance of the needs served by BAC testing is
hard to overstate. The bottom line is that BAC tests are
needed for enforcing laws that save lives. The specifics, in
short, are these: Highway safety is critical; it is served by
laws that criminalize driving with a certain BAC level; and
enforcing these legal BAC limits requires efficient testing
to obtain BAC evidence, which naturally dissipates. So BAC
tests are crucial links in a chain on which vital interests
hang. And when a breath test is unavailable to advance
those aims, a blood test becomes essential.”
Mitchell v. Wisconsin,
588 US 840, 851,
139 S Ct 2525,
204
L Ed 2d 1040 (2019).
Thus, to determine whether the evidence justified
the warrantless blood draw, we examine the totality of the
circumstances, 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, 320 Or App at 351.
Beginning with the first, third, and fourth factors,
Oregon has laws authorizing electronic and telephonic warrants, ORS 133.545(7), (8); Portulano, 320 Or App at 357,
and Marion County courts had an established electronic
warrant process at the time of defendant’s arrest, making a
judge available to review electronic warrants. Kowash knew
how to use that process to send an electronic warrant application to a judge. This process reduces the time needed to
secure a warrant but still includes many of the same steps
as the “paper” warrant process. Kowash testified that, even
with the electronic process, he still would have had to write
up a full warrant application, send it to the district attorney’s office for review, and then email it to the warrant
judge on duty for approval. Although there were procedures
and technology available to expedite the warrant process,
90 State v. Sanchez
the procedures and technology would have only saved the
time previously required to drive to the judge’s location to
be sworn and obtain the judge’s signature. The trial court
credited Kowash’s testimony that it would have taken him
at least two hours to prepare the application, and the court
found that the entire process would have taken about three
hours. That weighs in favor of exigency.
Concerning the second factor, the hit-and-run scene
and the apartment complex parking lot where defendant
was arrested were separate scenes, but there was no evidence that those scenes required immediate attention or
investigation from officers by the time defendant was being
transported to the hospital for the blood draw. However, with
respect to the fifth factor, Kowash did identify an additional
practical consideration that weighs in favor of exigency:
that the Keizer Police Department is small and had only
three officers on duty at the time of defendant’s arrest. If
one of the officers had been occupied with obtaining a warrant while another was busy transporting defendant to the
hospital, only one officer would have been available to serve
all of the remaining law-enforcement needs of the city for
approximately three hours during a typically busy time of
day. See Portulano, 320 Or App at 359 (“We are mindful of
the challenges that remote warrants can place on” localities
“with limited resources” and consider “the possibility that a
record could establish that the resource constraints … prevented seeking” an electronic warrant.). This practical consideration specific to the Keizer Police Department weighs
in favor of exigency.
Taking into account the totality of the circumstances, then, the trial court correctly concluded that the
state met its burden of establishing that exigent circumstances justified forgoing the warrant process to preserve
BAC evidence that was dissipating over time. The trial court
found that the warrant process would have taken about
three hours. Even assuming that an officer was available to
start the warrant process while another officer transported
defendant to the hospital, obtaining a warrant would have
delayed defendant’s blood draw by over two hours, resulting in a total delay of over four hours from the time that
Cite as 344 Or App 85 (2025) 91
defendant was driving, a potentially significant difference.
Thus, the trial court correctly concluded that there were exigent circumstances that justified obtaining the warrantless
blood draw.
Affirmed.
