State v. Demus

• Decision Date: 19 June 1996
• Citation: 141 Or.App. 509,919 P.2d 1182
• Parties: STATE of Oregon, Appellant, v. Marian DEMUS, Respondent. TC94-12455; CA A86918.
• Court: Oregon Court of Appeals

Page 1182

919 P.2d 1182

141 Or.App. 509

STATE of Oregon, Appellant, v. Marian DEMUS, Respondent.

TC94-12455; CA A86918.

Court of Appeals of Oregon.

Argued and Submitted May 1, 1996.

Decided June 19, 1996.

Jonathan H. Fussner, Assistant Attorney General, argued the cause for appellant. With him on the briefs were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General.

John Henry Hingson III, Oregon City, argued the cause and filed the brief for respondent.

Before RIGGS, P.J., and LANDAU and LEESON, JJ.

LEESON, Justice.

The state appeals from a pretrial order granting defendant's motion to suppress field sobriety tests and all derivative evidence. We affirm.

We recite the facts as presented by testimony at the suppression hearing and as found by the trial court. Shortly before 2:30 a.m. on May 21, 1994, Officer Shellans saw defendant's car as it turned onto State Highway 26, a four-lane divided highway, and accelerated to highway speed going west in an eastbound lane. Shellans followed, driving his patrol car in a westbound lane. After about six-tenths of a mile, defendant stopped his car, drove across the grass median strip onto a westbound lane and again accelerated to highway speed. Shellans turned on the overhead lights of his patrol car, and defendant promptly and safely pulled off the road and stopped.

When Shellans approached defendant's car, defendant said, "I know I shouldn't be driving, I made a mistake." Shellans immediately smelled a moderate odor of alcohol on defendant's breath and noted that defendant's eyes were bloodshot and watery and that his speech was slightly slurred. In response to Shellans' inquiry about whether he had been drinking, defendant said that he had consumed seven or eight pints of beer between 5:00 p.m. and 1:00 a.m. Defendant did not have a driver's license and informed Shellans that he was visiting from another state. Shellans also observed that, in attempting to produce his automobile registration, defendant passed over it three times even though it was clearly visible to Shellans from outside the car. Shellans "asked [defendant] if he would step from his vehicle to submit to a series of field sobriety tests and he agreed." Shellans did not, however, advise defendant of the consequences of refusing to perform those tests. See ORS 813.135 to ORS 813.136 (requiring officer to inform driver that refusal to submit to field sobriety tests is admissible into evidence in any civil or criminal proceeding).

After conducting several field sobriety tests, Shellans arrested defendant for driving under the influence of intoxicants (DUII), ORS 813.010, and read him Miranda warnings. Shellans then took defendant to the Sandy Police Department, where defendant registered a blood alcohol level of .069 percent on an Intoxilyzer test.

Defendant filed numerous pretrial motions, including a motion to suppress evidence of his performance on the field sobriety tests. The trial court's OMNIBUS HEARING ORDER included its ruling that

"defendant's motion to suppress the field sobriety tests and the derivative evidence, including the result of the intoxilyzer, because the officer lacked probable cause to search the defendant, is allowed[.]"

On appeal, the state offers alternative theories for why the trial court's ruling was error. First, it argues that State v. Nagel, 320 Or. 24, 880 P.2d 451 (1994), does not require that an officer have probable cause before conducting field sobriety tests where, as here, the officer does not advise the driver of the adverse consequences of refusal and the driver voluntarily performs those tests. Alternatively, it argues that Shellans had probable cause to conduct a search by means of field sobriety tests. See id. at 31-32, 36-37, 880 P.2d 451 (holding that field sobriety tests constitute a search under Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution, and that the search is reasonable when it is based on probable cause and under exigent circumstances).

We have carefully reviewed the trial court record, including the audio tape of the suppression hearing, and conclude that the state's first theory is presented for the first time on appeal. ¹ See State v. Hickmann, 273 Or. 358, 360, 540 P.2d 1406 (1975), cited in State v. Fish, 321 Or. 48, 59, 893 P.2d 1023 (1995) (losing party at trial may not argue on appeal issue that it did not argue before trial court). Consequently, we address only the issue of whether Shellans had probable cause to require defendant to perform field sobriety tests.

In Nagel, the Supreme Court held that the state had not run afoul of the prohibitions against unreasonable searches contained in the state and federal constitutions, because the officer had conducted field sobriety tests "with probable cause and under exigent circumstances," which is one of the recognized exceptions to the search warrant requirement. 320 Or. at 31-32, 36-37, 880 P.2d 451. Under that exception, an officer must subjectively believe that the defendant was driving under the influence of intoxicants, and that belief must be objectively reasonable, before the officer may administer field sobriety tests. Id. at 32, 880 P.2d 451.

In this case, there is no disagreement about whether exigent circumstances existed. See id. at 33, 880...