State v. Hackworth, 8301-0210

• Decision Date: 08 August 1984
• Docket Number: No. 8301-0210,8301-0210
• Citation: 685 P.2d 480,69 Or.App. 358
• Parties: STATE of Oregon, Respondent, v. Elbert HACKWORTH, Appellant. ; CA A30048.
• Court: Oregon Court of Appeals

Page 480

685 P.2d 480

69 Or.App. 358

STATE of Oregon, Respondent, v. Elbert HACKWORTH, Appellant.

No. 8301-0210; CA A30048.

Court of Appeals of Oregon.

Argued and Submitted April 18, 1984.

Decided Aug. 8, 1984.

F. James Healy, Albany, argued the cause for appellant. With him on the brief was Long, Delapoer, Koos & Healy, P.C., Albany.

Linda DeVries, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on the brief were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.

Before RICHARDSON, P.J., and WARDEN and NEWMAN, JJ.

RICHARDSON, Presiding Judge.

Defendant appeals a conviction for driving under the influence of intoxicants, ORS 487.540, alleging that the trial court erred in failing to suppress certain statements defendant made before he was given Miranda warnings. We affirm.

We are bound by the historical facts found by the trial court in the omnibus hearing. Ball v. Gladden, 250 Or. 485, 443 P.2d 621 (1968). At approximately 4:15 a.m., Lane County Deputy Sheriff Benson was dispatched to the scene of a single-car accident. He found a pickup truck in a field next to the road and saw that defendant was attempting to drive it away but was apparently stuck in the mud. Observing that defendant had a cut on his forehead, Benson told him to stay there while he went to his patrol car for his first aid kit. Benson then put a dressing on defendant's wound while defendant leaned on the front fender of his truck. While attending to defendant, Benson detected a strong odor of alcohol on his breath and person and noticed that his eyes were watery and bloodshot, his words were slurred and he was unsteady on his feet. He asked defendant how the accident happened. Defendant said that he was driving home to Sweet Home when the lights of his pickup went out and he went off the road. Benson asked if he had been drinking, and defendant replied that he had had several beers and some shots of vodka. Benson asked him for his driver's license, and defendant had trouble retrieving it from his wallet. In response to Benson's questions, defendant stated that he was the truck's only occupant and had been driving at the time of the accident and that he did not believe his unstable condition was a result of the accident. Benson asked him what time it was and where he was, and defendant thought it was an hour earlier than it was and that he was near Tangent, which in fact was 24 miles away. Defendant refused Benson's request to take roadside sobriety tests. After defendant answered negatively inquiries about whether he was taking medication or had had any alcohol after the accident, Benson arrested him for driving under the influence of intoxicants and advised him of his rights. Approximately 15 minutes elapsed between the time Benson arrived at the accident scene and the formal arrest.

At trial and on appeal defendant did not argue that the evidence should be suppressed under the state constitution. Citing the test of "custodial interrogation" expressed in Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way," defendant contends that he should have been advised of his rights when, "while administering first aid, Benson made his observations which prompted him to question the defendant on the defendant's sobriety." We understand him to argue, first, that it was at that point that Benson determined to arrest defendant and, second, that the evidence demonstrates that a reasonable person would not have felt free to leave at that point and that he was therefore deprived of his freedom in a significant way. The trial court found that Benson did not decide to arrest defendant until after he had declined the sobriety test and had stated that he had consumed no alcohol after the accident. The court refused to suppress statements made before that point. A recent United States Supreme Court case, Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984), undermines both of defendant's arguments and the articulated basis of the trial court's decision.

Previous Oregon decisions based on federal law have indicated that a person is entitled to Miranda warnings at least when the inquiring officer had made a decision to arrest the suspect, whether or not that intention was communicated. State v. White, 279 Or. 302, --- P.2d ---- (1984); see also State v. Roberti, 293 Or. 236, 646 P.2d 1341 (1982), remanded ---- U.S. ---, 104 S.Ct. 3574, 82 L.Ed.2d 873 (1984).

In Berkemer v. McCarty, supra, the Supreme Court disapproved such a test, stating:

" * * * A policeman's unarticulated plan has no bearing on the question whether a suspect was 'in custody' at a particular time; the only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation. * * * " 468 U.S. at ----, 104 S.Ct. at 3152 (slip opinion at 20).

In addition, the Court further clarified the test enunciated in Miranda, indicating that a person is not entitled to be advised of his rights if he is not "subjected to restraints comparable to those associated with a formal arrest." 468 U.S. at ----, 104 S.Ct. at 3151 (slip opinion at 20). Thus, our inquiry in this case is not to determine when Benson formed the subjective intent to arrest defendant, but rather to determine at what point a reasonable person in defendant's situation would have understood himself to be in custody or under restraints comparable to those associated with a formal arrest.

As demonstrated by the facts in that case, McCarty also clarifies that that inquiry differs from the inquiry whether defendant felt "free to leave." In McCarty, the officer observed the defendant's car weaving on the highway and stopped him. He noticed that the defendant had difficulty standing and decided to charge him with a traffic offense, but did not communicate that intention to the defendant. He questioned the defendant about his use of intoxicants and asked him to perform a "balancing test." The Supreme Court concluded that the defendant's responses were admissible, despite the fact that he had not been given Miranda warnings. The Court noted that a driver's freedom of action is significantly curtailed in a traffic stop--at least in part because it is usually illegal to elude an officer, see ORS 487.555--but concluded that other features of the "ordinary traffic stop" offset the effect of that curtailment.

"Two features of an ordinary traffic stop mitigate the danger that a person questioned will be induced 'to speak where he would not otherwise do so freely,' Miranda v. Arizona, 384 U.S., at 467 . First, detention of a motorist pursuant to a traffic stop is presumptively temporary and brief. The vast majority of roadside...