State v. Moylett

• Decision Date: 16 July 1992
• Citation: 313 Or. 540,836 P.2d 1329
• Parties: STATE of Oregon, Respondent on Review/Petitioner on Review, v. Lawrence William MOYLETT, Petitioner on Review/Respondent on Review. DC D890539M; CA A60930; SC S37110, SC S37148.
• Court: Oregon Supreme Court

Page 1329

836 P.2d 1329

313 Or. 540

STATE of Oregon, Respondent on Review/Petitioner on Review, v. Lawrence William MOYLETT, Petitioner on Review/Respondent on Review.

DC D890539M; CA A60930; SC S37110, SC S37148.

Supreme Court of Oregon.

Argued and Submitted Sept. 6, 1990.

Decided July 16, 1992.

William Uhle, Portland, filed the petition and argued the cause for petitioner on review/respondent on review.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent on review/petitioner on review. With him on the petition were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Before CARSON, ^* C.J., and PETERSON, ^** GILLETTE, VAN HOOMISSEN, FADELEY and UNIS, JJ.

GILLETTE, Justice.

Defendant in this criminal case is charged with driving under the influence of intoxicants (DUII), ORS 813.010, assault in the fourth degree, ORS 163.160, and criminal mischief in the second degree, ORS 164.354. Defendant was hospitalized following a vehicular collision. An investigating officer asked hospital personnel to extract three blood samples from defendant. The first sample was taken before the officer obtained a search warrant for defendant's blood. The second and third samples were taken after a search warrant was obtained. On defendant's motion, the trial court suppressed evidence obtained from the first sample because "no exigent circumstances existed." Concerning the subsequent two blood samples, the trial court suppressed on the ground that the "affidavit for the search warrant is insufficient" because it contained no facts "[showing] that the defendant was affected to a perceptible degree or indeed at all." The Court of Appeals affirmed as to the first blood sample, but reversed as to the second and third. State v. Moylett, 101 Or.App. 86, 789 P.2d 677 (1990). We hold that, as to the charge of DUII, all three blood samples properly were suppressed, but that, as to the other two charges, the first blood sample properly was suppressed while the second and third blood samples were admissible.

The Court of Appeals' summary of the events giving rise to this appeal, which both parties accept, is as follows:

"On the evening of December 23, 1988, defendant[, who was an off-duty deputy sheriff,] drove his vehicle into the rear end of a pickup truck that had stopped to make a left turn. Officer Parks came to the collision scene at 8:18 p.m. and noted that defendant had a strong odor of alcohol on his breath, bloodshot and watery eyes, and slow and slurred speech. Defendant told Parks that he had had three gin and tonics, beginning about 3:30 that afternoon. [Parks did not arrest defendant at the scene.] Defendant was then driven [by a fellow deputy sheriff, whom Parks had summoned at defendant's request,] to a hospital in Hillsboro for examination and treatment. Parks again interviewed defendant at the hospital, beginning at 9:15 p.m. The interview lasted about a half hour; during it, defendant refused to consent to giving a blood sample for a blood alcohol test. Parks, nevertheless, asked hospital personnel to draw a sample, which they did at 10:06 p.m.

"After Parks obtained the first blood sample, his supervisor told him that the District Attorney's office recommended that he get a warrant for the samples. Parks then handwrote an affidavit, took it to a judge, and received a handwritten warrant at 11:03 p.m. At 11:10 p.m. and 12:08 a.m., hospital personnel drew two more samples pursuant to the warrant."

State v. Moylett, supra, 101 Or.App. at 88, 789 P.2d 677. (Bracketed additions ours.)

Parks' affidavit states:

"I, Bruce Parks [am a] police officer with the City of Hillsboro * * *.

"I have been a police officer for nine year[s], during which time I have received traffic investigation classes and have [i]nvestigat[ed] over 50 accident scenes.

"On Friday Dec. 23rd 1988 at about 2018 hrs, I came upon a traffic accident at the intersection of T.V. Hwy and Shute Park Plaza. At the scene I found that a passenger in one of the involved vehicles was in great pain and complained of back and neck injur[i]es.

"During my investigation I learned that a vehicle driven by Jose Tavera was stopped in a turn lane and another vehicle driven by Lawrence Moylett ran into the rear of Tavera's vehicle injuring his wife Beverly Tavera.

"During my contact with Moylett at the scene, I noticed he had a strong odor of alcoholic beverage on his breath. Moylett later told me [he] had three Gin and tonics at the B.J.'s rest[a]urant before the accident.

"At this time [i.e., at 10:56 p.m.], I believe Mr. Moylett is under the Influence and driving a motor vehicle involved in an injury accident. Mr. Moylett at this time is refusing to submi[t] to a blood alcohol draw.

"I * * * [hereby] request permission to search Lawrence Moylett's blood for his blood alcohol content for D.U.I.I. and assault with a motor vehicle."

In the trial court, defendant argued that the initial extraction of a blood sample was made without probable cause to believe that defendant had committed a crime. He further argued that, even if there were probable cause, the first sample was extracted without either a search warrant or exigent circumstances that would obviate the need for a warrant. He also argued that the warrant under which the second and third blood samples were extracted was not supported by probable cause. The trial court granted defendant's motion in its entirety. Concerning the initial blood sample, the trial court ruled that the evidence showed "that there was a manner of obtaining a search warrant prior to obtaining the first blood sample taken. [The evidence] further showed that the procedure could be accomplished quickly within the time period necessary to prevent the loss of evidence." As to the second and third samples, the trial court concluded that there was no probable cause to authorize taking the samples, because "[t]he affidavit contains no facts setting out why the officer believes that the defendant was, at any time, under the influence. Nothing shows that the defendant was affected to a perceptible [degree] or indeed at all."

On appeal, the Court of Appeals held that the initial blood sample was taken in violation of Article I, section 9, of the Oregon Constitution, ¹ because the taking of the sample constituted a warrantless search and there were no exigent circumstances justifying a warrantless search. State v. Moylett, supra, 101 Or.App. at 90-91, 789 P.2d 677. The court held that this court's cases on blood sample searches, State v. Milligan, 304 Or. 659, 748 P.2d 130 (1988), and State v. Langevin, 304 Or. 674, 748 P.2d 139 (1988), do "not mean that exigent circumstances exist in every case where blood alcohol dissipation might be important." State v. Moylett, supra, 101 Or.App. at 90, 789 P.2d 677. In the present case, the court stated, "[t]he extraction of defendant's blood was not made promptly after he was taken to a place where it could be done, and Parks had an opportunity in the time that actually elapsed to obtain a warrant." Id. Concerning the warrant issued between the first and second samples, on the other hand, the court held that there was probable cause to justify issuance of the warrant because the affidavit "allowed the judge to infer that defendant's carelessness [in causing the traffic accident] was the result of his being under the influence of the alcohol." Id. at 91, 789 P.2d 677.

Both the state and defendant petitioned this court for review. The state contends that the Court of Appeals erred in holding that no exigent circumstances existed under the standard set forth by this court in State v. Milligan, supra, and State v. Langevin, supra, which would justify the taking of the initial blood sample. The state argues that Parks did no more than an

"on-the-scene investigation, interviewing of witnesses, and arranging for the taking of a blood sample * * *. * * * The fact that Officer Parks ultimately was able to obtain a warrant for the drawing of blood samples in about 45 minutes, contrary to his prior understanding of the length of time required, is simply a fortuitous circumstance which does not affect the analysis of this case."

Defendant contends that the Court of Appeals erred in holding that there was probable cause supporting issuance of the warrant obtained by Parks before the second and third samples were taken.

We allowed review of both petitions to address the important issues involved. As we shall demonstrate, the Court of Appeals' attention in this case was partially diverted from the central consideration, which is the fact that one of the offenses charged is DUII.

THE DRIVING UNDER THE INFLUENCE CHARGE

By now, the appropriate method of resolving properly raised issues of criminal procedure in Oregon should be axiomatic. All issues should first be addressed on a subconstitutional level. Courts then should consider any remaining issues under the Oregon Constitution. Finally, if no state law, including the state constitution, resolves the issues, courts then should turn for assistance to the Constitution of the United States. See State v. Kennedy, 295 Or. 260, 262, 666 P.2d 1316 (1983) (setting forth methodology). The trial court did not do that in this case.

As noted, the trial court decided this case on probable cause to seize and search grounds--a constitutional consideration. However, with respect to the DUII charge, defendant first had argued for suppression of the results of all three blood alcohol tests on statutory grounds, viz., that suppression was required under ORS 813.140. The trial court did not rule on this theory. It should have. The motion was well taken.

ORS 813.140 provides:

"Nothing in ORS 813.100 [Oregon's Implied Consent Law] is intended to preclude the administration of a chemical test described in this section. A police officer may obtain a chemical test of the blood to determine the amount of alcohol in any person's blood * *...