State v. Dinsmore

• Citation: 49 P.3d 830,182 Or. App. 505
• Parties: STATE of Oregon, Respondent, v. Karen Ruth DINSMORE, Appellant.
• Decision Date: 10 July 2002
• Court: Court of Appeals of Oregon

49 P.3d 830

182 Or. App. 505

STATE of Oregon, Respondent, v. Karen Ruth DINSMORE, Appellant.

99-09-234-CR; A111512.

Court of Appeals of Oregon.

Argued and Submitted January 4, 2002.

Decided July 10, 2002.

Robert J. McCrea, Eugene, argued the cause for appellant. With him on the reply brief were Robynne A. Whitney and McCrea, P.C., Eugene.

Doug M. Petrina, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before EDMONDS, Presiding Judge, and ARMSTRONG and KISTLER, Judges.

KISTLER, J.

Defendant was convicted of criminally negligent homicide.¹ On appeal, she assigns error to the denial of her motion to suppress evidence that the officers obtained after they detained and questioned her. She also assigns error to the trial court's finding that she was not eligible for optional probation. We reverse and remand.

In June 1999, just before 11:00 p.m., defendant was driving west on Highway 20 in Harney County.² On the highway ahead of her, two cars were stopped, waiting to turn left onto a side road. Mr. Overton was driving the first car. Ms. Overton and her son Ian were in the second car. Defendant failed to brake as she approached the two cars. Defendant's car crashed into Ms. Overton's car, went "flying up" over that car, and landed on Mr. Overton's car. Ms. Overton died almost instantly. Her son Ian was critically injured, and Mr. Overton suffered lesser injuries.

Defendant remained at the scene after the accident. When the police officers arrived, Deputy Johnson spoke with defendant and asked whether she had been involved in the accident. She denied any involvement. While setting out flares, Deputy McCall saw damage to defendant's vehicle and realized that defendant had been involved. McCall spoke with Johnson, telling him that he had asked defendant to remain at her car. Defendant complied with that request. After a brief time, the two deputies asked a third person, Officer Hodge, to supervise defendant at her car. They wanted to make sure that defendant was safe and also that she did not leave. Hodge supervised defendant for approximately an hour and a half. During that time, defendant asked to leave with a tow truck driver so that she could go to the bathroom. After discussing defendant's request with another officer, Hodge refused it.

While defendant was in her car, Deputy Johnson was interviewing witnesses, taking care of the injured, and investigating the crash site. During that process, he learned that a witness had seen the taillight and turn signals of the Overtons' cars as they stopped, waiting to turn off the highway. Another witness told Johnson that defendant appeared to be driving very fast. Finally, Johnson saw that defendant's car had not left any skid marks on the road before it struck the first car. Johnson concluded that the only explanation for the accident was that defendant had failed to stop. Although he did not know why she had not stopped, he concluded that it was likely that she had recklessly or negligently caused Ms. Overton's death.

After completing his initial investigation, Johnson approached defendant at 1:15 a.m. in order to ask her about the accident. As he did so, he noticed a faint odor of alcohol on her breath. Johnson began questioning defendant without first advising her of her Miranda rights, and defendant admitted drinking one beer approximately nine hours earlier, at 4:00 p.m. She also said that she had been using medications for high blood pressure and allergies. Johnson asked defendant whether, as she approached the Overtons' cars, she had seen brake or taillights or blinkers. Defendant denied having seen anything. He also asked her about her speed and whether she was trying to get somewhere quickly. Defendant estimated that she had been traveling at about 58 miles an hour and denied that she had needed to get anywhere quickly.

At the end of the interview, Johnson placed defendant under arrest for reckless driving. He removed her from her car, handcuffed her, and advised her of her Miranda rights. Johnson then asked defendant to perform field sobriety tests, "if she would," to which defendant agreed. Just before beginning the tests, Johnson asked defendant another series of questions, covering some of the same material that he had covered in the 1:15 a.m. interview. He asked her again whether she had something to drink, and defendant admitted to having one drink. He did not, however, ask her, as he had earlier, whether she had seen headlights or taillights or about her speed of travel. Defendant then performed field sobriety tests, and Johnson arrested her for driving under the influence of intoxicants (DUII).

Johnson took defendant to the police station, where she agreed to take a blood alcohol test. The test revealed that her blood alcohol content was .06. The state indicted defendant for second-degree manslaughter and DUII. Before trial, defendant filed a motion to suppress: (1) evidence that Johnson had detected alcohol on her breath when he approached her at 1:15 a.m.; (2) the statements that defendant made to Johnson during the 1:15 a.m. interview; (3) the results of the field sobriety tests; and (4) the results of the breath test. Specifically, she argued that she had been unlawfully detained, that she had been taken into custody without probable cause, and that she had been interrogated without the benefit of Miranda warnings. She also argued that Johnson lacked probable cause to administer the field sobriety tests.

The trial court denied defendant's motion to suppress, holding that she had been lawfully detained and that Johnson had probable case to arrest her before beginning the first interview. Although Johnson had not given defendant Miranda warnings before speaking with her at 1:15 a.m., the court concluded that Miranda warnings were not required because the circumstances were not compelling. It also found that defendant's statements were voluntary. Finally, the trial court ruled that defendant had voluntarily consented to the field sobriety tests. After the trial court's ruling, defendant entered a conditional no-contest plea to criminally negligent homicide, see ORS 135.335(3), and the court entered a judgment of conviction based on her plea.

On appeal, defendant assigns error to the trial court's ruling denying her motion to suppress.³ Her arguments on appeal mirror those raised below. She argues that the officers acted unconstitutionally when they directed her to remain at the scene, questioned her about the accident without first giving her Miranda warnings, and administered the field sobriety tests.⁴ We address each of her arguments in turn.

Defendant argues initially that the officers arrested her without probable cause by detaining her for approximately two hours at the accident site. She also contends that Johnson exploited that illegality first when he detected alcohol on her breath at 1:15 a.m. and later when he questioned her. The state responds that it did not seize defendant until Johnson formally arrested her for reckless driving after the 1:15 a.m. interview. Alternatively, the state argues that Johnson had both subjective and objective probable cause to arrest defendant before he approached her at 1:15 a.m "[A] `seizure' of a person occurs under Article I, section 9, of the Oregon Constitution * * * if a law enforcement officer intentionally and significantly restricts, interferes with, or otherwise deprives an individual of that individual's liberty or freedom of movement[.]" State v. Holmes, 311 Or. 400, 409, 813 P.2d 28 (1991). In this case, the officer told defendant to stay in her vehicle; he assigned another officer to watch her to make sure that she did not leave; the officers denied her request to leave the scene so that she could go to the bathroom; and the detention lasted for at least an hour and a half.

It may be, as the state argues, that an officer's request that a motorist stay briefly at an accident scene to provide information would not constitute a seizure for the purposes of Article I, section 9. See Holmes, 311 Or. at 410-11,

813 P.2d 28; State v. Blair/Vanis, 171 Or.App. 162, 169-70, 14 P.3d 660 (2000),

rev. den. 332 Or. 137, 27 P.3d 1043 (2001). Here, however, the officers refused to let defendant leave the accident scene for at least an hour and a half. The duration of the restraint alone is sufficient to convert the officers' actions into a seizure and, more specifically, into an arrest.⁵

See State v. McKinney, 174 Or.App. 47, 51-52 and n. 3, 23 P.3d 386 (2001), rev. den. 333 Or. 260, 39 P.3d 193 (2002) (identifying the characteristics that distinguish an arrest from a stop).

Having concluded that defendant was arrested before the interview, we turn to her claim that the officers lacked probable cause to arrest her. Defendant argues initially that the state presented no evidence that the officers had probable cause at the point that the detention ripened into an arrest; that is, she argues that she was arrested at some point during the hour and a half detention and that the state failed to prove when, during that period, it developed probable cause that she may have been guilty of a crime. Even if defendant's first argument were correct, the state learned nothing from defendant until the officer approached her at 1:15 a.m. Any deprivation of defendant's rights before then did not result in any evidence that would be subject to a motion to suppress. State v. Schwartz, 173 Or.App. 301, 307, 21 P.3d 1128, rev. den. 333 Or. 162, 39 P.3d 192 (2001). It follows that the only relevant question on defendant's Article I, section 9, claim is whether probable cause existed when Johnson approached defendant at 1:15 a.m. and detected alcohol on her breath. We turn to that question.

Under Article I, section 9, probable cause has two components: "An officer must subjectively believe that a crime...