State v. Bickford

• Decision Date: 25 November 1998
• Citation: 157 Or.App. 386,970 P.2d 234
• Parties: STATE of Oregon, Appellant, v. Christopher Maynard BICKFORD, Respondent. Z397321; CA A97503.
• Court: Oregon Court of Appeals

Page 234

970 P.2d 234

157 Or.App. 386

STATE of Oregon, Appellant, v. Christopher Maynard BICKFORD, Respondent.

Z397321; CA A97503.

Court of Appeals of Oregon.

Argued and Submitted July 29, 1998.

Decided Nov. 25, 1998.

Ann Kelley, Assistant Attorney General, argued the cause for appellant. With her on the brief were Hardy Myers, Attorney General, and Virginia L. Linder, Solicitor General.

Kimi Nam, Deputy Public Defender, argued the cause for respondent. With her on the brief was Sally L. Avera, Public Defender.

Before De MUNIZ, P.J., and HASELTON and WOLLHEIM, JJ.

WOLLHEIM, J.

The state appeals a pretrial order suppressing evidence in the prosecution of defendant for driving under the influence of intoxicants (DUII). ORS 813.010. The state assigns error to the trial court's finding that the officer lacked subjective probable cause to arrest defendant. Because the trial court's finding was based on an incorrect legal standard, we reverse and remand.

On November 16, 1996, Officer Maul cited defendant for driving under the influence of intoxicants (DUII). Defendant filed a motion to suppress any evidence regarding the field sobriety tests (FSTs) and the Intoxilyzer test. At the suppression hearing, Maul testified to the following: At 1:45 a.m., a seemingly high traffic time for DUIIs, Maul noticed defendant driving 15 miles per hour under the speed limit and weaving within his lane. This gave Maul "concern" that defendant was impaired. Defendant then signaled less than 20 feet before turning onto another street. Maul pulled defendant over, intending to cite him for failing to signal 100 feet before a turn and to investigate defendant's "odd driving." As Maul approached defendant's truck, defendant stepped out and "wobbled." Defendant's eyes were watery and red, and he looked shocked and confused. Maul explained that defendant's lack of balance, bloodshot eyes, and apparent confusion indicated that defendant was alcohol impaired. Maul asked defendant to get back in the truck. When defendant had trouble doing so, Maul asked him if he had been drinking, and defendant responded that he had consumed two beers earlier.

At that point, Maul "had some real concerns that [defendant] might have been driving under the influence," and he asked defendant to come to the back of the truck so they could talk further. Defendant complied and seemed more stable as he got out of the truck; however, defendant's walk was unbalanced, and he still looked confused. Maul then read defendant his Miranda rights, but he testified that defendant was not under arrest at that time. Maul explained that he "had some real concerns and * * * wanted to give [defendant] an opportunity to either substantiate [Maul's] concerns or alleviate them." Maul then asked defendant to perform some FSTs, which defendant refused. Maul testified: "Based on the observations I already did, I placed him under arrest for" DUII. Those observations included "slurred speech, unsure balance, confused, unsure footing, the odd driving, driving too slow, [weaving] within the lane, failing to signal, [defendant's] confused look, and the fact that [defendant] admitted to consuming some alcohol earlier that night." Maul described defendant's level of intoxication as "[o]bvious. I could tell when I put defendant in the car that I thought he was impaired from drinking alcoholic beverages."

Following defendant's arrest, he was taken to the police station where he agreed to take an Intoxilyzer test from Officer Powell. Defendant's test exceeded the legal limit for blood alcohol. During that time, defendant made additional admissions concerning the number of alcoholic drinks he had consumed.

The trial court found both officers credible and made findings of fact consistent with Maul's testimony. The trial court held that those facts "clearly established an objective basis for Officer Maul having probable cause to believe that defendant was under the influence of the intoxicants." The court then explained that under State v. Owens, 302 Or. 196, 204, 729 P.2d 524 (1986), Maul must have both objective and subjective probable cause for arrest. The trial court concluded that the state failed to prove subjective probable cause because there was "no testimony in the record of subjective belief by [Maul]" that defendant was under the influence of intoxicants before Maul asked defendant to perform the FSTs. The trial court concluded that Maul impermissibly used defendant's refusal to perform the FSTs to establish probable cause. See State v. Gilmour, 136 Or.App. 294, 299, 901 P.2d 894, rev. den. 322 Or. 360, 907 P.2d 247 (1995) (refusal to consent to FSTs cannot be used to establish probable cause).

On appeal, the state argues that the trial court applied an incorrect rule of law to determine whether Maul had subjective probable cause before defendant refused to perform the FSTs. The state argues that the trial court based its determination on incorrect legal assumptions, i.e., the court was precluded from inferring subjective probable cause from the facts in the record, and the officer had to include "magic words" in his testimony explicitly stating his "belief" that defendant was intoxicated. Defendant responds that the trial court made a factual finding that is supported by evidence in the record, and we, therefore, are bound by that finding. We review whether the trial court correctly applied the legal principles to the facts. State v. Davis, 295 Or. 227, 238, 666 P.2d 802 (1983), and in doing so, we agree with the state.

Subjective probable cause means that the officer believes that it is more likely than not that defendant committed an offense. State v. Wetzell, 148 Or.App. 122, 125, 939 P.2d 106, rev. den. 325 Or. 621, 941 P.2d 1022 (1997). Therefore, if the only evidence is that the officer had a "mere suspicion" or felt there was only a "possibility" that the offense was committed, the officer lacks subjective probable cause. Id. at 127, 939 P.2d 106; State v. Demus, 141 Or.App. 509, 513, 919 P.2d 1182 (1996); Winroth v. DMV, 140 Or.App. 622, 628, 915 P.2d 991 (1996). However, we have never required the officer to utter any "magic words" to convey subjective probable cause. See State v. Nagel, 320 Or. 24, 32, 880 P.2d 451 (1994) (officer's testimony that "based on his observations"...