Murphy v. Bd. of Parole, A141520.

• Decision Date: 23 February 2011
• Docket Number: A141520.
• Citation: 241 Or.App. 177,250 P.3d 13
• Parties: Robert Doyle MURPHY, Petitioner,v.BOARD OF PAROLE AND POST–PRISON SUPERVISION, Respondent.
• Court: Oregon Court of Appeals

241 Or.App. 177

250 P.3d 13

Robert Doyle MURPHY, Petitioner,

v.BOARD OF PAROLE AND POST–PRISON SUPERVISION, Respondent.

A141520.

Court of Appeals of Oregon.

Submitted April 2, 2010.Decided Feb. 23, 2011.

Robert Doyle Murphy filed the briefs pro se.John R. Kroger, Attorney General, Jerome Lidz, Solicitor General, and Greg Rios, Assistant Attorney General, filed the brief for respondent.Before ORTEGA, Presiding Judge, and SERCOMBE, Judge, and LANDAU, Judge Pro Tempore.LANDAU, J., Pro Tempore.

The Board of Parole and Post–Prison Supervision (board) issued a final order revoking petitioner's parole because he violated a special condition of his parole that prohibited him from using or possessing an intoxicating beverage. He advances a number of different challenges to the order, including that its findings are not supported by adequate evidence, that the special condition that he is supposed to have violated is unconstitutionally vague, and that the board violated his rights to procedural due process on a number of different grounds. We conclude that none of the challenges has merit and affirm.

I. FACTS

In 1976, petitioner brutally raped and murdered the victim while he was intoxicated. He pleaded guilty to intentional murder and was sentenced to life imprisonment, with the possibility of parole. In 2007, petitioner was released on parole. Because of the nature of the underlying offense—specifically, the fact that he was intoxicated at the time—his parole supervision conditions included Special Condition No. 9, a requirement that “[o]ffender shall not possess or use intoxicating beverages.” While on parole, petitioner resided at Sponsors, Inc., a transitional housing residence for ex-convicts.

In November 2007, a Sponsors staff member, Charles Ong, approached petitioner because he smelled alcohol on petitioner's breath and observed that petitioner's eyes were bloodshot. Ong asked petitioner to submit to a breath test, and petitioner agreed. He registered a blood alcohol content (BAC) of .013 percent. Petitioner told Ong that he had not consumed alcohol but had just recently gargled Listerine. Ong notified petitioner's parole officer, Lydia Garcia, of the breath test results.

The next day, petitioner voluntarily reported the positive alcohol test result to Garcia and submitted two urine samples. The first sample was tested on site and tested positive for methamphetamine but not alcohol. Petitioner denied use of both substances. Petitioner was arrested and returned to supervised custody for violating parole based on the positive test result for methamphetamine.

The second urine sample was sent to Redwood Toxicology Laboratory, a renowned testing facility located in California. That sample tested negative for methamphetamine, but tested positive for alcohol use. The test performed by the lab to determine alcohol use examined the urine's ethyl glucuronide (EtG) level. As the lab's chief toxicologist, Wayne Ross, explained in a letter to the board, “since EtG is only detected in urine when ethanol[, i.e., alcohol,] has been ingested, and due to its extended detection time and stability in urine, EtG serves as an excellent ‘biomarker’ for determining recent alcohol use and/or chronic alcoholism.” Ross further explained that an EtG level of 100–2000 ng/ml would represent incidental exposure to ethanol from household products, such as Listerine or Nyquil. The EtG level of petitioner's urine sample was 5220 ng/ml. Ross's letter concluded that an EtG concentration of 5220 ng/ml resulting from use of Listerine would be “extremely unlikely.” In a phone conversation between Garcia and another technician at the lab, that technician asserted that petitioner would have had to “consume bottles and bottles of Listerine to obtain such a high reading for the presence of alcohol.”

On December 13, 2007, petitioner was provided with a notice-of-rights hearing by a board hearings officer, Hessman. Hessman advised petitioner that he was being accused of violating Special Condition No. 9, consuming an intoxicating beverage. Petitioner denied consuming an intoxicating beverage and stated that he was in the habit of gargling Listerine, which, unknown to him until just recently, contains alcohol. At that time, petitioner (1) requested a hearing; (2) requested that an attorney be appointed to him; and (3) requested that two Sponsors employees, Ong and Brummett, be present at the hearing as witnesses. Hessman denied petitioner's request for an attorney, asserting that he did not qualify as indigent. Hessman also denied petitioner's request for the witnesses to be present, asserting that they were irrelevant to petitioner's violation.

On January 3, 2008, the board conducted a revocation hearing. The hearings officer, Barker, first addressed petitioner's request for a board-appointed attorney. Barker denied the request because (1) petitioner had no colorable claim that amounted to a reasonable defense regarding consumption of alcohol; (2) there were no complex issues; and (3) petitioner understood the English language and could speak on behalf of himself. Barker also noted that petitioner received over $500 per month in VA benefits and had chosen not to retain an attorney. Barker then denied petitioner's request for the appearance of the two witnesses whom petitioner requested because they were irrelevant to the allegations against him.

At the hearing, petitioner received a copy of the lab's report showing his EtG of 5220 ng/ml, as well as Ross's explanatory letter describing the results and their implications. Both were submitted as evidence. Garcia, Hessman, and petitioner presented testimony. Garcia referred to statements made by Ong and the lab report findings.

Petitioner testified at the hearing that he had not used intoxicating beverages. He again argued that any evidence showing alcohol in his system was a result of his Listerine use. He also, for the first time, asserted that Nyquil might also be to blame for the alcohol in his system. Petitioner stated that he used Nyquil four to six times a day and asserted that he just recently learned that Nyquil contained alcohol. Petitioner wanted to question Ong about whether Ong asked petitioner if he was using mouthwash and how Ong could smell alcohol on petitioner's breath if he also smelled the mouthwash. Petitioner also questioned the validity of Ross's toxicology report.

In his hearing report, Barker found that petitioner, “as reported by Redwood Labs, and smelled by the staff at Sponsors, Inc., was using some type of alcohol. He admits that he was using Nyquil and Listerin[e], to control his pain.” Barker concluded that petitioner violated Special Condition No. 9, which forbids petitioner from consuming an intoxicating beverage, and that his parole should be revoked. Barker stated that, because petitioner “admits having alcohol in his system, whether by consumming [ sic ] beer, hard liquor, or any other source, plus having a positive test from a renowned lab, he is found to be in need of revocation * * *.” After reviewing Barker's hearing report and two letters from petitioner contesting Barker's conclusions, the board accepted Barker's recommendation and revoked petitioner's parole.

Petitioner filed exceptions to the board's decision. He again denied drinking intoxicating beverages and asserted that his high EtG must be a result of his Listerine and Nyquil use. Petitioner also raised several procedural issues regarding the manner in which the hearing was conducted. Specifically, he noted the board's failure to give him advance notice of the evidence and witnesses against him, the denial of his right to call witnesses, the denial of his right to cross-examine the board's witnesses, and the denial of a board-appointed attorney. Last, petitioner attacked the reliability of the EtG test, citing a 2006 U.S. Department of Health article that stated that “disciplinary action based solely on a positive EtG * * * is inappropriate and scientifically unsupportable at this time.” (Emphasis added.) After reviewing the record and petitioner's two letters, the board revoked petitioner's parole for violation of Special Condition No. 9.

Petitioner timely sought administrative review of the revocation order, arguing, among other things, that the order lacked substantial evidence and was issued in violation of his due process rights. Because more than a year had passed since petitioner had requested administrative review and he did not receive a response, he filed this petition for judicial review. The board moved to dismiss the petition on the ground that petitioner had failed to exhaust his administrative remedies. See ORS 144.335(1)(b) (judicial review available if “[t]he person has exhausted administrative review as provided by board rule”). By order of the Appellate Commissioner, the motion was denied under Taylor v. Board of Parole, 200 Or.App. 514, 520–21, 115 P.3d 256, rev. den., 339 Or. 475, 124 P.3d 1248 (2005), because the board had exceeded the latitude accorded to it by the legislature in choosing not to impose time constraints on the board's administrative review process.

Thereafter, the board issued its administrative review response, in which it explained:

“At the end of the day, [petitioner's] urine tested positive for alcohol at a level that was well over the cutoff amount for incidental alcohol usage. As the Board views the record, offender first claimed Listerine was the cause and then later added Nyquil as the possible cause. What is missing, however, is any argument that [petitioner] did not use—whether inadvertent[ly] or not—intoxicating beverages, which is clearly prohibited by [Special Condition No. 9].”

The board then rejected petitioner's alleged procedural errors as being without merit and denied petitioner relief, thereby affirming the revocation order.

II. ANALYSIS

On judicial review, petitioner renews his arguments that the revocation order lacks...