State v. Forrest

• Decision Date: 09 May 2001
• Citation: 174 Or. App. 129,25 P.3d 392
• Parties: STATE of Oregon, Appellant, v. Edward K. FORREST, Respondent.
• Court: Oregon Court of Appeals

25 P.3d 392

174 Or. App. 129

STATE of Oregon, Appellant, v. Edward K. FORREST, Respondent.

C 99-06-45174; A108125

Court of Appeals of Oregon.

Argued and Submitted March 22, 2001.

Decided May 9, 2001.

Thomas C. Patton, Assistant Attorney General, argued the cause for appellant. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Adam L. Dean, Portland, argued the cause for respondent. With him on the brief was Des & Shannon Connall, LLP. Before HASELTON, Presiding Judge, and WOLLHEIM, Judge and VAN HOOMISSEN, Senior Judge.

HASELTON, P.J.

The state appeals from an order suppressing the results of field sobriety tests (FSTs) in a prosecution for driving under the influence of intoxicants (DUII), ORS 813.010, and from an ensuing order of dismissal. ORS 138.060. We conclude that there was objective probable cause to support defendant's arrest for DUII that preceded the administration of the FSTs. State v. Nagel, 320 Or. 24, 880 P.2d 451 (1994). We further conclude that all of the FSTs administered here were "nontestimonial" for purposes of State v. Fish, 321 Or. 48, 893 P.2d 1023 (1995). Accordingly, we reverse and remand.

On review of a motion to suppress, we are bound by the trial court's findings of historical fact if there is sufficient evidence to support them. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993). At about 11:00 on the night of May 21, 1999, Portland Police Officer Taylor was on duty in northeast Portland when he saw defendant's car turn north onto N.E. 122nd Avenue. Taylor began to follow defendant's car, and saw the car weave several times within its lane and fluctuate between 35 and 45 miles an hour in a 35 mile per hour zone.¹ At one point, defendant's car made a lane change, which Taylor perceived to be unsafe, in that it left insufficient space for a following vehicle, causing the driver of that car to brake. Shortly thereafter, defendant stopped at a red light and, after the light turned green, waited three seconds to proceed. Taylor regarded that pause as evincing impairment.

Taylor stopped defendant's car for the unsafe lane change. When Taylor approached the driver's side of the car, the window was down, and Taylor smelled a strong odor of alcohol, which he believed was coming from defendant. The strong odor persisted even when defendant was not talking. Taylor asked defendant for his driver's license and proof of insurance, and defendant produced them without any noticeable difficulty or fumbling. Taylor asked defendant whether he had been drinking, and defendant responded that he had been drinking earlier in the evening and had recently been at The Refectory (an establishment in northeast Portland), but did not have anything to drink there. Defendant's speech was not slurred, but Taylor characterized it as "halting," with unnatural pauses. Defendant's eyes were watery but not bloodshot.

Taylor asked defendant if he would perform some FSTs, and defendant refused. Taylor then asked defendant to step out of the car and arrested defendant for DUII. Taylor then took defendant to Portland's east precinct for DUII processing.

At the precinct, Portland Police Officer Hedges read defendant his Miranda rights and asked him if he would perform some FSTs. Again, defendant refused. Hedges then asked defendant if he would perform tests, which Hedges characterized as "nonverbal/non-testimonial tests," including the horizontal gaze nystagmus (HGN) test, the nine-step walk-and-turn test, and the one-leg stand, modified so that defendant would count to himself, rather than out loud. See OAR 257-025-0020 (describing FSTs). Hedges explained to defendant that, if he refused to do the tests, his refusal would be used against him in court. ORS 813.136. Defendant then performed, and failed, each of those tests.

Defendant was subsequently charged with one count of DUII. Thereafter, defendant moved to suppress the results of the FSTs, arguing: (1) The arrest for DUII was unlawful in that it was not supported by objective probable cause; (2) similarly, given the lack of probable cause, Hedges's "request" that defendant perform FSTs was unlawful under Nagel; and (3) various aspects of the walk-and-turn and one-leg stand tests—and, particularly, those evincing defendant's ability to process and follow instructions—were "testimonial" under Fish.

The trial court suppressed the FST results, holding that, while Taylor had subjective probable cause, he lacked objective probable cause to arrest defendant for DUII. See State v. Owens, 302 Or. 196, 204, 729 P.2d 524 (1986)

(probable cause has both subjective and objective components). The trial court further determined that, given the absence of objective probable cause, neither Taylor nor Hedges could lawfully "even request the driver" to perform FSTs. That is, the court determined that the lack of objective probable cause precluded the officers from seeking and obtaining even voluntary and consensual performance of the FSTs. Finally, the court determined that aspects of the nonverbal walk-and-turn and one-leg stand FSTs administered by Hedges were "testimonial" under Fish:

"As to the [walk-and-turn] test, the officer can testify about the performance of the [walk-and-turn] test, and if he observed the defendant fall off the line or if he observed the defendant have difficulty by swaying, or et cetera, he can certainly testify as to that.

"Now, the question here is whether he can say anything about whether the defendant performed nine steps or ten steps or seven steps.

"My reading of these cases is that he cannot say anything about the number of steps because that really involves the counting part, even though it was not done out loud, and it was done internally. It makes no difference, at least in the mind, of the appellate courts, since I read the cases.

"So that involves a communication, the number of steps, the officer can't testify about the number of steps that were made or done or not done, but the rest he can describe what he observed and that is my reading on that.

"* * * * *

"Focusing simply on what occurred at the station, I think my ruling stands that, to the extent that there is a verbal component, whether it is out loud or internally, since the courts define communication as being communication by words or conduct, that that part does not come in.

"But the officer can testify about his observations with respect to the tests and so the horizontal gaze nystagmus test, the officer could testify about that and about the way the [walk-and-turn] was performed.

"I have not yet gotten to the point of the probable cause. I am dealing with that issue separately.

"Now, holding one's leg up for a certain length of time, [State v.] Nielsen [, 147 Or.App. 294, 936 P.2d 374, rev. den. 326 Or. 68, (1997)] actually specifically dealt with that particular test and said that the counting itself is testimonial, arguably, but the fact that the person cannot hold their leg up is not. It is an observation.

"So the length of time and the counting is not anything that is admissible. However, the fact that the person cannot hold their leg up without falling over, that is an observation. That is a physical observation, and so it is a physical task that we're talking about."

The trial court consequently suppressed the FST results. The state appeals from that order of suppression and from the ensuing order of dismissal. See State v. Robinson, 158 Or.App. 494, 500, 974 P.2d 713 (1999)

(appellate court lacks jurisdiction to consider appeal from order granting motion to suppress where trial court entered a valid order of dismissal and state failed to appeal from that order).

On appeal, the state challenges each component of the trial court's reasoning: First, the state asserts, there was objective probable cause for the DUII arrest. That, in turn, coupled with exigent circumstances (e.g., dissipation of defendant's blood-alcohol content) would permit the officers, without a warrant, to lawfully direct defendant to perform the FSTs. See Nagel, 320 Or. at 33,

880 P.2d 451 (risk that evidence of the defendant's intoxication may have dissipated provided the exigent circumstances justifying the warrantless administration of FSTs). Second, even if the officers lacked objective probable cause, they were entitled to request defendant's consent to voluntarily perform FSTs, and the trial court's assumption to the contrary—that the officer must have "probable cause to even request the driver to do field sobriety tests"—was incorrect. See State v. Barber, 151 Or.App. 84, 86, 949 P.2d 1236 (1997) ("`[C]onsent is a valid exception to the warrant requirement and * * * probable cause is not a necessary prerequisite to asking a defendant for consent to perform field sobriety tests in the context of a DUII stop.'") (emphasis added) (quoting State v. Ramos, 149 Or.App. 269, 272, 942 P.2d 841 (1997)). See also State v. Maddux, 144 Or.App. 34, 41, 925 P.2d 124 (1996) (upholding constitutionality of the defendant's voluntary consent to perform FSTs). Third, the state argues that the trial court erred in its determination that nonverbal aspects of the walk-and-turn and one-leg stand FSTs were "testimonial." In particular, the state argues that that determination, although consonant with the dissenting view in State v. Nielsen, 147 Or.App. 294, 936 P.2d 374,

rev. den. 326 Or. 68, 950 P.2d 892 (1997), is irreconcilable with the en banc majority in that case.

As explained below, we conclude that Taylor's arrest of defendant for DUII was supported by objective probable cause and that, given the exigent circumstances, Hedges could lawfully direct defendant to perform the FSTs. We further conclude that the results of the FSTs here, which involved no verbal component and were entirely nontestimonial, were admissible as evidence. Consequently, the trial court erred in suppressing the FST results.

We begin with the issue of probable cause. In Na...