State v. Portulano

• Decision Date: 15 June 2022
• Docket Number: A171262
• Citation: 320 Or.App. 335,514 P.3d 93
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Francis Michael PORTULANO, Defendant-Appellant.
• Court: Oregon Court of Appeals

320 Or.App. 335

514 P.3d 93

STATE of Oregon, Plaintiff-Respondent,

v.Francis Michael PORTULANO, Defendant-Appellant.

A171262

Court of Appeals of Oregon.

Argued and submitted January 26, 2021.

June 15, 2022

Nora Coon, Deputy Public Defendant, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellant Section, Office of Public Defense Services.

Joanna L. Jenkins, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before James, Presiding Judge, and Lagesen, Chief Judge, and Kamins, Judge.

JAMES, P.J.

This case involves exigency, blood draws, and electronic warrants. Defendant appeals from a judgment of conviction of, among other things, one count of driving under the influence of intoxicants (DUII) constituting a felony, ORS 813.010, arguing that the trial court erred, under Article I, section 9, of the Oregon Constitution, and the Fourth Amendment to the United States Constitution, in denying his motion to suppress evidence obtained in a warrantless blood draw. As discussed in detail below, at the time of this incident, Josephine County law enforcement purposefully declined to utilize electronic warrant procedures for DUII blood draws, instead relying exclusively on claims of exigent circumstances from the dissipation of blood alcohol levels to justify warrantless blood draws. As such, we are called upon to discern the proper consideration of the availability and use of electronic warrant procedures—or the lack thereof—in the calculation of exigency for warrantless DUII blood draws.

For the purposes of the Oregon Constitution this requires us to interpret State v. Machuca , 347 Or. 644, 657, 227 P.3d 729 (2010) in light of State v. McCarthy , 369 Or. 129, 501 P.3d 478 (2021). Defendant argues that, given McCarthy , "unless the county has affirmatively adopted policies to create an efficient electronic warrant process, that county cannot rely solely on the potential loss of evidence while police wait for a warrant to establish exigency." The state argues that " McCarthy does not alter the [ Machuca ] analysis applicable here." As we explain, the truth lies somewhere in the middle. McCarthy does affect the calculation of exigency for DUII blood draws under Machuca , and how it is litigated. However, we ultimately conclude that, under Machuca , the warrantless blood draw here was permissible.

We reach a different conclusion under the Fourth Amendment. As we explain, unlike the Oregon Supreme Court's analysis in Machuca , the Fourth Amendment analysis articulated in Missouri v. McNeely , 569 U.S. 141, 148, 133 S.Ct 1552, 185 L.Ed. 2d 696 (2013) requires consideration of the totality of the circumstances to determine if exigency existed, and the dissipation of alcohol in the blood is but one of many factors to consider. Here, the totality of the circumstances includes the availability of electronic warrant procedures, the availability of judicial magistrates, and the purposeful choice by law enforcement countywide to decline to ever, under any circumstance, exercise that option. McNeely does not permit a functional per se exigency, and we accordingly reverse because the warrantless blood draw violated the Fourth Amendment.

When reviewing a denial of a motion to suppress, "we are bound by the facts found by the trial court that are supported by evidence in the record." State v. Gerety , 286 Or.App. 175, 179, 399 P.3d 1049 (2017). Whether those facts describe circumstances that justify a warrantless search or seizure is a question of law. The facts in this case are undisputed.

In Josephine County on October 19, 2016, at around 9:00 p.m., dispatch notified Trooper Heather West of a suspicious call. Using the onboard computer in her patrol car, West was able to select and read the details of the call. Defendant's wife reported that defendant "was at a *** bar, that he drives intoxicated on a regular basis, that he's suspended from driving, and that he would soon be leaving that bar"; upon his return, he would likely be violent with her. West parked outside of the bar, and again, using her onboard computer, ran the car's registration and confirmed that it belonged to defendant; Department of Motor Vehicles records returned defendant "as felony suspended driving."

At approximately 9:40 p.m., West saw defendant's car driving away from the bar and she pulled out behind him. When defendant accelerated, West turned on her overhead lights. Defendant continued accelerating, reaching speeds above 70 mph. The pursuit ended at approximately 9:50 p.m. when defendant crashed, flipping the car upside down and trapping himself in the driver's seat. The crash occurred in a rural part of the county.

While waiting for emergency personnel to respond, West focused on preservation of life by securing scene safety. She set up traffic flares, communicated with defendant through a broken window, and provided updates to responding units. Medical personnel arrived at approximately 10:00 p.m. Ultimately, two fire trucks, an ambulance, and one or two tow trucks responded. Sergeant Boice, Trooper Henderson, and Officer Wallace each responded as well. None of the police officers directly helped to extricate defendant from his vehicle: West and Boice focused on "preserving roadway evidence, making sure that any motoring public didn't * * * come up on the crash and cause further hazards," Henderson provided additional backup to West and Boice, and Wallace began conducting a traffic investigation.

Extricating defendant from his vehicle took the nonpolice emergency responders 30 to 40 minutes. Once defendant had been extricated, at approximately 10:40 p.m., emergency personnel advised West that they could smell the strong odor of alcohol coming from defendant. At that point, Boice instructed Henderson to follow the ambulance to the hospital and to secure a blood draw from defendant; they did not discuss a search warrant.

Back at the crime scene, as defendant was in transport to the hospital, Wallace continued his traffic investigation, and West and Boice headed to defendant's wife's house to inform her of the accident. West testified that two officers were necessary both for general officer safety and because they did not know the full extent of defendant's injuries, and therefore, they could be making a notification of death. They arrived at the house about 10 minutes later, and after calling defendant's wife, they discovered that she had already learned of the accident and was on her way to the hospital. West then headed to the hospital, arriving 15 to 20 minutes later.

Defendant arrived at hospital around 11:00 p.m. Upon arrival Henderson told the staff that he wanted a blood draw. Defendant apparently refused that request and, at 11:04 p.m., Henderson instructed a phlebotomist to perform a blood draw. Medical personnel then took defendant off for x-ray imaging

. The blood draw eventually disclosed a blood alcohol content (BAC) of 0.148. West testified that based on her training and experience, once drinking has stopped, BAC dissipates at an estimated rate of .015 per hour.

At trial, defendant moved to suppress the evidence obtained in the warrantless blood draw. At the motion hearing, the court took notice of ORS 133.545(7) and (8), which relate to electronic warrants and provide:

"(7) Instead of the written affidavit described in subsection (6) of this section, the judge may take an oral statement under oath. The oral statement shall be recorded and a copy of the recording submitted to the judge who took the oral statement. In such cases, the judge shall certify that the recording of the sworn oral statement is a true recording of the oral statement under oath and shall retain the recording as part of the record of proceedings for the issuance of the warrant. The recording shall constitute an affidavit for the purposes of this section. The applicant shall retain a copy of the recording and shall provide a copy of the recording to the district attorney if the district attorney is not the applicant.

"(8)(a) In addition to the procedure set out in subsection (7) of this section, the proposed warrant and the affidavit may be sent to the court by facsimile transmission or any similar electronic transmission that delivers a complete printable image of the signed affidavit and proposed warrant. The affidavit may have a notarized acknowledgment, or the affiant may swear to the affidavit by telephone. If the affiant swears to the affidavit by telephone, the affidavit may be signed electronically. A judge administering an oath telephonically under this subsection must execute a declaration that recites the manner and time of the oath's administration. The declaration must be filed with the return."

Evidence at the motion hearing showed the following. From the perspective of the judiciary in Josephine County, judges were available to provide electronic warrants. Officers in Josephine County were emailed a list of rotating judges that are available around the clock for issuing search warrants. Additionally, by making a call on speaker phone, Josephine County police officers could use the WatchGuard system in their patrol vehicles to record both sides of a telephone conversation. Cell phone service permitting, the police officers also had email capabilities from their patrol cars. Despite this infrastructure, however, none of the testifying officers had ever applied for a telephonic search warrant in Josephine County.

The initial case officer is responsible for writing the warrant application. West was the initial case officer; accordingly, it would have been her responsibility to apply for a search warrant on the night of the arrest.

West did not speak with Boice, Henderson, or Wallace about obtaining a warrant to withdraw defendant's blood. On the night of the incident, West had no experience applying for electronic...