State v. Bayer

• Decision Date: 01 July 2009
• Docket Number: A134518.,060342557.
• Citation: 211 P.3d 327,229 Or. App. 267
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Jason Michael West BAYER, Defendant-Appellant.
• Court: Oregon Court of Appeals

211 P.3d 327

229 Or. App. 267

STATE of Oregon, Plaintiff-Respondent, v. Jason Michael West BAYER, Defendant-Appellant.

060342557.

A134518.

Court of Appeals of Oregon.

Submitted August 27, 2008.

Decided July 1, 2009.

Peter Gartlan, Chief Defender, and Erica Herb, Deputy Public Defender, Legal Services Division, Office of Public Defense Services, filed the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Sally L. Avera, Senior Assistant Attorney General, filed the brief for respondent.

Before LANDAU, Presiding Judge, and ORTEGA, Judge, and CARSON, Senior Judge.

LANDAU, P.J.

Defendant was convicted of driving under the influence of a controlled substance (DUII-CS), ORS 813.010.¹ On appeal, he assigns error to the trial court's denial of his motion to suppress an incriminating statement made in what he contends were compelling circumstances before he received Miranda warnings. He also challenges the court's failure to dismiss the charges against him for lack of a speedy trial. And he assigns error to the court's decision to admit expert testimony by a drug recognition expert (DRE) regarding his administration of the so-called DRE protocol, on the ground that the final step of the protocol—the toxicological testing of defendant's urine—was, in defendant's view, inadequate. We reject all of defendant's arguments and affirm.

I. FACTS

The relevant facts are undisputed. On June 28, 2005, City of Gresham Police Officer Ozeroff—who was on traffic patrol on a motorcycle—pulled defendant over for speeding and making an improper lane change. Ozeroff had also seen the passenger in the back seat toss a lighted cigarette out of the car. Once Ozeroff contacted defendant, he asked to see defendant's driver license, which defendant admitted was suspended. Ozeroff believed that defendant was under the influence of some sort of intoxicant, but he had not been certified to administer the DRE protocol. Bryant, the back seat passenger who had thrown the lighted cigarette, admitted that there was a warrant out for his arrest.

Ozeroff called for backup. He requested that a patrol car respond to the scene to take Bryant into custody. He also requested that Officer Durbin respond to the scene to evaluate defendant's sobriety; unlike Ozeroff, Durbin was certified to administer the DRE protocol, which is a method used by law enforcement officers to ascertain whether a person is under the influence of a controlled substance. Ozeroff also intended to have the car that defendant was driving towed. At that point, only a couple of minutes had passed since Ozeroff pulled over defendant.

The patrol car arrived before Durbin did. Once Ozeroff placed Bryant inside the patrol car, Ozeroff had defendant get out of the car for field sobriety testing. Defendant's eyes were glassy and bloodshot; he was also jittery and making rapid movements. When Ozeroff asked him why his eyes were red, defendant attributed it to the fact that he had just come from work. Ozeroff asked defendant what time he got off work, and defendant replied, "5 o'clock." After Ozeroff noted that it was not yet 5:00 (it was 4:45), defendant said that he got off a few hours early that day. Defendant's heart was pounding so hard during the conversation that Ozeroff could see it beating through defendant's shirt.

Ozeroff then conducted two field sobriety tests. During a horizontal gaze nystagmus test, defendant's eyes did not have difficulty tracking as would be indicative of alcohol intoxication, although Ozeroff was suspicious of the rapid and constant eye movement. During the next test, a strabismus test, defendant had difficulty holding both eyes in a crossed position. Although Ozeroff did not believe that defendant was inebriated, he suspected that defendant was under the influence of some sort of controlled substance. Approximately five minutes had passed since Ozeroff called Durbin. Ozeroff later could not recall whether he told defendant that he was required to wait at the scene for Durbin to arrive. At no point did Ozeroff give defendant Miranda warnings.

Durbin arrived a minute or two after Ozeroff completed his field sobriety testing. Durbin immediately observed defendant's red eyes and rapid movements. When he asked defendant how much marijuana he had smoked that day, defendant replied that he had "smoked a bowl" an hour or two ago. When Durbin asked him to rate his sobriety on a scale of one to 10 (with a "one" being completely sober), defendant said "two." Defendant also stated that he was paranoid and that his heart was pounding.

Durbin then administered another field sobriety test—the walk-and-turn test—which defendant failed. In Durbin's mind, "there was no doubt * * * at that point that [defendant] was impaired to operate a vehicle." Durbin arrested defendant for DUII and gave him Miranda warnings.

At the police station, defendant took a breath test, which disclosed a .00 percent blood alcohol content, conclusively ruling out alcohol as the cause of defendant's apparent intoxication. Durbin then conducted the remaining steps of the 12-step DRE protocol. During that process, Durbin observed many indications that defendant was under the influence of at least one controlled substance. Based on his observations, Durbin concluded that defendant was incapable of safely operating a vehicle and that he was under the influence of marijuana and a central nervous system stimulant. To corroborate his opinion, Durbin requested a urine sample from defendant for toxicological testing. (The results of the testing later confirmed that defendant's urine contained metabolites of both marijuana and cocaine, which is a central nervous system stimulant.) Durbin released defendant after citing him for DUII-CS.

Defendant appeared three weeks after the incident for his scheduled court appearance-on July 18, 2005, a Monday. Because the circuit court does not conduct arraignments on Mondays, however, the citation was dismissed. Defendant was aware that he might be recharged.

Eight months later, on March 16, 2006, the state filed a misdemeanor information for DUII-CS pertaining to the June 2005 incident. Defendant was arraigned and appointed counsel on July 11, 2006. A diversion eligibility hearing was scheduled for August 3, at which point defendant requested a setover until August 24. On August 24, defendant declined diversion, and his trial was scheduled for November 8. The state later requested a setover, and defendant's trial was rescheduled to December 13.

In the meantime, defendant filed a motion to suppress his statement that he had "smoked a bowl" of marijuana shortly before the traffic stop, among other evidence that is not at issue in this appeal. He alleged that his statement was a response to police questioning in compelling circumstances that required Miranda warnings.

On December 13, the parties appeared for trial and for a hearing on defendant's motion to suppress. At that point, defendant moved to dismiss the charges against him for lack of a speedy trial—a motion that the court denied. Regarding the suppression motion, the state presented evidence as to the events we have described; Ozeroff testified, and the parties stipulated to the contents of Durbin's police report. Defendant advanced two arguments in support of his motion to suppress. First, he argued that Ozeroff unlawfully arrested him by requiring him to wait several minutes for Durbin to arrive after concluding that defendant had not been consuming alcohol—an argument that he does not reassert on appeal. Second, he argued that that detention, coupled with the fact that Ozeroff had questioned him about the redness of his eyes and conducted field sobriety tests, constituted compelling circumstances, thus warranting Miranda warnings prior to questioning by Durbin. The trial court rejected those arguments, concluding that the evidence of defendant's intoxication, including his incriminating statement, was obtained during a "typical DUII investigation." The court denied defendant's suppression motion in its entirety.

Defendant was then tried to a jury. Ozeroff's trial testimony was largely the same as his testimony at the suppression hearing. Durbin also testified. He first testified as to his qualifications as a DRE-certified police officer and as to how he administered the protocol and recorded the results. He then testified as to his observations of defendant made during his administration of the protocol and as to his opinion that defendant was under the influence of two controlled substances.

Refalo, the toxicologist who conducted the chemical analysis of defendant's urine at the Oregon State Police (OSP) forensic laboratory also testified. He stated that, when conducting a urinalysis, the lab—which is an accredited forensic laboratory—performs both a screening test and a confirmatory test. If both of those tests agree, he explained, the result is reported as either negative or positive. He commented that the lab conducts no quantitative testing of urine, stating that the lab views such analysis as "misleading or useless" to determine a person's impairment at the time the sample is collected. Refalo stated, however, that the screening test is "semi-quantitative," in that the level of a substance must meet a specified threshold—a "cutoff level"—to register as positive for that substance. The cutoff level used by the OSP lab for marijuana metabolites is lower than that specified by the National Institute for Drug Abuse (NIDA) of the United States Department of Health and Human Services. In other words, under Oregon's cutoff level, a screening test could be positive for marijuana metabolites while the same quantity would register as negative under the NIDA guidelines. Refalo also testified that the OSP lab's cutoff level for detecting cocaine metabolites in the screening test is the same as the NIDA guidelines.

Defendant objected to the testimony of...