State v. Nielsen

• Decision Date: 26 March 1997
• Citation: 147 Or.App. 294,936 P.2d 374
• Parties: STATE of Oregon, Respondent, v. Kevin NIELSEN, Appellant. C93-03-31616; CA A83396. Court of Appeals of Oregon, In Banc
• Court: Oregon Court of Appeals

Page 374

936 P.2d 374

147 Or.App. 294

STATE of Oregon, Respondent, v. Kevin NIELSEN, Appellant.

C93-03-31616; CA A83396.

Court of Appeals of Oregon,

In Banc.

Argued and Submitted June 14, 1996.

Resubmitted In Banc Sept. 11, 1996.

Decided March 26, 1997.

[147 Or.App. 295-A] Wayne Mackeson, Portland, argued the cause and filed the brief for appellant.

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

LANDAU, Judge.

Defendant appeals judgments of conviction for two counts of Assault in the Second Degree, ORS 163.175, and one count of Driving Under the Influence of Intoxicants (DUII), ORS 813.010. He argues that the trial court should have suppressed the evidence of field sobriety tests that he performed, because the tests constituted compelled self-incrimination under Article I, section 12, of the Oregon Constitution, and under the Fifth Amendment to the United States Constitution. He also argues that the trial court should have suppressed his statements to officers and the results of the breath and blood tests administered to him, because the evidence was obtained through unlawful police conduct. We agree with the state that the admission of evidence of the field sobriety tests, the evidence of defendant's statements to the officers and the results of breath and blood tests violated neither the state nor the federal constitutions and therefore affirm.

In so doing, we acknowledge that, during the pendency of this appeal, the voters of this state enacted "Ballot Measure 40," which, among other things, requires that Article I, sections 9 and 12, of the Oregon Constitution "not be construed more broadly than the United States Constitution." No party, however, has urged us to consider in this case the applicability and meaning of the measure. We solicited briefing from the parties on the matter sua sponte. In response, the state informed us that the Supreme Court also has solicited briefing on that and related matters and has the matter now under advisement and that we should hold this and all other cases to which Ballot Measure 40 may apply in abatement. We conclude that, because the Supreme Court has the matter under advisement, it would be of no benefit to decide the applicability and meaning of relevant Ballot Measure 40 issues. We also conclude, however, that it would be of no benefit simply to warehouse all criminal cases until the Supreme Court decides the matter. Accordingly, we decide this case without regard to Ballot Measure 40 and leave it to the parties to seek review as appropriate following the Supreme Court's anticipated decision.

The facts are not in dispute. In the early morning hours of February 28, 1993, defendant was driving his car north on southwest Macadam Avenue in Portland when he hit a car traveling in front of him in the same direction. The other car careened off the road and rolled down a steep embankment. Officer DeLand was the first officer to contact defendant at the accident scene. Although DeLand observed that defendant had a slight odor of alcohol on his breath and that his eyes were bloodshot, he did not believe that defendant was intoxicated. Defendant explained to DeLand that he had been traveling northbound in the left lane on Macadam when a car in the right lane suddenly slammed on its brakes and swerved into his lane, causing him to hit it. Officer Wyatt was also at the accident scene and noticed what he considered to be an overwhelming odor of alcohol coming from defendant's breath, that defendant's speech was slurred, that he had red, bloodshot eyes and that he swayed while standing. Wyatt testified that, although he believed that defendant was obviously under the influence of intoxicants when he first made contact with him, he did not say anything to DeLand about defendant's state of sobriety because DeLand was conducting the contact. Wyatt then left DeLand and defendant to direct traffic further down the road.

One and one-half hours later, Wyatt returned to the accident scene and was surprised to see defendant still there. At the time, defendant was showing DeLand the skid marks and explaining how the marks could not have been made by his car. Wyatt approached defendant again. Based on observations similar to those he had made earlier, he requested and received permission from DeLand to have defendant perform field sobriety tests.

Wyatt asked defendant to look into his eyes and performed a Horizontal Gaze Nystagmus (HGN) test. He then asked defendant how much alcohol he had consumed that night, and defendant replied that he had consumed one eight-ounce beer four hours earlier. Wyatt then told defendant:

"I am concerned about the amount of alcohol you have had to consume this evening. I'm about to ask you some questions. I'm about to ask you to perform some tests. I need to let you know that [the] failure to answer these questions or [the] failure to perform these tests can be used against you in court."

Defendant agreed to answer the questions and to perform the field sobriety tests.

Wyatt first asked defendant how much education he had received and whether he had any physical problems. He then instructed defendant to perform the walk-and-turn test by standing with his left foot behind his right foot with the left toe touching the right heel. Defendant was unable to stand as requested and finally told Wyatt that he could not perform the test. Wyatt then had defendant stand on one leg, and raise the other roughly six inches off the ground, while keeping his hands down to his sides, looking at his toe and counting from 1 to 30 by thousands. Defendant did not keep his hands down to his sides and had trouble counting but was able to keep one foot off the ground for the entire test by twisting his foot and raising his arms. Finally, Wyatt had defendant perform a "modified" Romberg Balance Test in which he was asked to stand with his feet together, "toes touching, heels touching side-by-side, and then to put [his] hands down to [his] side, to close [his] eyes and tip [his] head back like so and just say the alphabet A to Z." Although defendant was able to say the entire alphabet, Wyatt observed that his speech was slurred and that he swayed. Wyatt told defendant that he was not arresting him at that time but that defendant should not leave. Wyatt left defendant to speak with DeLand; 15 minutes later, he returned, arrested defendant and advised him of his Miranda rights. Wyatt asked defendant if he understood his rights, and defendant answered in the affirmative. Wyatt advised defendant that he would be asking him some more questions, asked if he understood and if it was "okay" to ask him questions. Defendant again said "yes." Wyatt then interrogated defendant about the details of the accident.

Eventually, defendant was transported to a police station and consented to an alcohol breath test. It had been almost three hours since the accident occurred. The Intoxilyzer machine test result indicated defendant's blood alcohol content was .12 percent. Wyatt then was ordered by his superior to obtain two blood tests from defendant. Before the blood was drawn, Wyatt showed defendant the breath test result, and defendant complained that the machine could not have registered such a high result from just one eight-ounce beer consumed several hours earlier. Wyatt told defendant that a blood test was another test to measure blood alcohol content, and that by obtaining a blood test, they would have more proof as to whether defendant was above or below the legal limit. Defendant asked Wyatt what would happen if he refused the blood draw, and Wyatt told him that he would seek a warrant if defendant refused. Defendant then consented to the blood draws. The first blood test indicated defendant's blood alcohol content to be .13 percent. The second test, done an hour later, registered a result of .11 percent.

Eventually, defendant was charged with the crimes. Before trial, he moved to suppress the evidence of all the statements that he had made to the officers, the evidence of the results of the field sobriety tests and the evidence of the breath and blood test results. The trial court suppressed the blood test results regarding the DUII count but denied the rest of defendant's motions. At trial, the jury convicted defendant on all counts.

On appeal, defendant argues that the trial court erred in failing to grant his pretrial motions to suppress. He first argues that because Wyatt did not advise him of his Miranda rights before he asked defendant how much alcohol he had consumed, defendant's answer constituted compelled self-incrimination. In particular, he argues that because he had been at the accident scene for two hours, he was in a "compelling" situation tantamount to custody when he answered the question. Miranda warnings may be required in circumstances that "create a 'setting which judges would and officers should recognize to be "compelling." ' " State v. Smith, 310 Or. 1, 7, 791 P.2d 836 (1990). The state argues that there is no evidence that defendant was "compelled" to remain at the scene of the accident. To the contrary, the state argues, defendant voluntarily contacted officers during the two hours following the accident and freely discussed with them the details of the accident.

We agree with the state that the record is not persuasive that defendant was "compelled" to remain at the accident scene. Once defendant answered DeLand's initial questions and provided DeLand with his driver's license and registration information, there is no evidence that any of the officers told him he could not leave, nor is there other evidence of compelling circumstances. Moreover, Wyatt's request that defendant perform the HGN test and his question regarding the consumption of alcohol did not compel defendant to answer that question....