State v. Warner

• Decision Date: 29 May 2002
• Citation: 47 P.3d 497,181 Or. App. 622
• Parties: STATE of Oregon, Appellant, v. Scott Alan WARNER, Respondent.
• Court: Oregon Court of Appeals

47 P.3d 497

181 Or. App. 622

STATE of Oregon, Appellant, v. Scott Alan WARNER, Respondent.

990544488; A108124

Court of Appeals of Oregon.

Argued and Submitted February 27, 2002.

Decided May 29, 2002.

Laura S. Anderson, Assistant Attorney General, argued the cause for appellant. With her on the briefs were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Irene B. Taylor, Deputy Public Defender, argued the cause for respondent. With her on the brief was David E. Groom, Acting Executive Director.

Before LANDAU, Presiding Judge, and BREWER, Judge, and OSBORNE, Judge pro tempore.

BREWER, J.

The state assigns error to two pretrial orders suppressing evidence against defendant, who was charged with driving under the influence of intoxicants (DUII). ORS 813.010. Defendant cross-assigns error to the trial court's denial of his motion to suppress the results of a horizontal gaze nystagmus (HGN) test administered to him while he was in the hospital. We review the trial court's legal conclusions for errors of law, State v. Komas, 170 Or.App. 468, 472, 13 P.3d 157 (2000), and reverse.

The following facts are taken from the evidence presented at a pretrial omnibus hearing. On May 7, 1999, defendant was the driver of a pickup involved in a traffic accident on the I-205 freeway near the Portland airport. Defendant was injured in the accident and was transported by ambulance to a hospital in Vancouver, Washington. Officer Sorenson was dispatched to investigate the accident, and he went to the hospital to meet defendant. When he arrived at the hospital, Sorenson spoke briefly with the ambulance personnel who had transported defendant, and they informed him that they had smelled alcohol on defendant's breath. Sorenson went into the emergency room and approached defendant, who was lying on his back and strapped to a backboard to keep his head immobilized.

Sorenson engaged in a brief conversation with defendant. During the conversation, Sorenson smelled an odor of alcohol and observed that defendant's eyes were bloodshot and glassy. Sorenson also testified that defendant's speech was slurred when he responded to questions. After approximately five minutes, Sorenson asked for, and received, defendant's consent to perform an HGN test on defendant. Based on the results of the HGN, Sorenson concluded that defendant showed signs of impairment.

Sorenson then questioned defendant specifically about the accident. Defendant told Sorenson that he was going to the airport. He said that he was in the far left lane on I-205 when he realized that he was at the airport exit. While attempting to cut across traffic to take the exit, he hit another vehicle and lost control of his pickup. Defendant's vehicle struck a cement retaining wall and ended up "on all fours" facing down the ramp at the exit. When Sorenson asked defendant if he had been drinking, defendant responded that he had consumed two or three drinks between 5:00 p.m. and 6:00 p.m. that evening and that he had eaten nothing since lunch. At that point, almost 8:00 p.m., Sorenson placed defendant under arrest for DUII. Sorenson read an implied consent form to defendant, and defendant consented to a blood test.

Before trial, defendant moved to suppress all evidence of the HGN test on the ground that its admission would violate Article I, section 9, of the Oregon Constitution, and the Fourth and Fourteenth Amendments to the United States Constitution.¹ Defendant also moved, pursuant to Article I, section 12, of the Oregon Constitution, and the Fifth Amendment to the United States Constitution, to suppress the statements he made to Sorenson after the HGN test was administered.² At the conclusion of the omnibus hearing on defendant's motions, the trial court denied the motion to suppress the HGN results but suppressed the challenged statements on the ground that defendant was in custody when Sorenson asked him about the accident without first giving him Miranda-type warnings.

Following those rulings, defense counsel raised an additional issue regarding evidence obtained as a result of the blood draw:

"I believe the state is going to try to introduce evidence of a blood draw. And it's our opinion that they are going to have some problems doing that. The reason is ORS 813.[160(2)] says that blood tests must be conducted by a duly licensed physician or else a person acting under the direction of such physician. I don't think the state is going to be able to meet their burden imposed by this to show that the person who drew the blood was a duly licensed physician."

The prosecutor responded that ORS 136.432 mandated that the blood-draw evidence be admitted even if it was obtained in violation of ORS 813.160(2).³

The court ruled that ORS 136.432 did not apply and that, if defendant's blood was drawn in violation of ORS 813.160(2), the results of the blood test would not be admitted. In lieu of recalling Sorenson to testify regarding compliance with ORS 813.160(2), the parties stipulated that Sorenson would testify as follows:

"Sorenson went to an emergency room where [defendant] was on a back board; that he spoke with and observed the lab tech who had a name tag on his coat. The lab tech was dressed appropriately. When asked, the lab tech gave his title as lab tech and a name that matched the name on the tag that the officer observed. That name being Don Joling * * *.

"The officer asked another person in the emergency [room] if he was the attending physician. The other person said affirmatively that he was the attending physician and gave his name as Dr. Stark; that the officer observed the blood draw; that the officer observed and asked whether [an] iodine swab was being used. He observed the package. He observed the blood draw itself. He observed that the blood was placed in a gray stopper tube and that he from there took custody of the stopper tube."

Defense counsel argued that, based merely on the stipulated facts, the court could not confirm that the person who drew the blood was a duly licensed physician or was acting under the supervision of a duly licensed physician, as required by the statute. The court agreed and concluded that "[t]he officer's testimony wouldn't suffice to get you past the requirements of that statute."

On appeal, the state assigns error to the suppression of defendant's statements made after the HGN test was administered and to the suppression of the blood-draw evidence.⁴

We first address the suppression of defendant's statements. The state argues that defendant was neither "in custody" nor were there "compelling circumstances" when Sorenson elicited the challenged statements. Therefore, according to the state, Miranda-type warnings were not required under the Oregon Constitution. Further, the state argues that defendant was not subject to "custodial interrogation" when he made the statements; thus, Miranda warnings were not required under the United States Constitution. Defendant responds that (1) the trial court found as a matter of fact that defendant was "in custody" at the time of the continued questioning; (2) because facts will be construed in favor of the party who won below, Ball v. Gladden, 250 Or. 485, 487, 443 P.2d 621 (1968), this court is bound by that conclusion; and (3) the facts demonstrate that defendant was in "compelling circumstances" after the HGN was administered.

Here, the relevant facts are not disputed, and—contrary to defendant's position—we review the trial court's conclusion for errors of law. See State v. Smith, 310 Or. 1, 7, 791 P.2d 836 (1990) (reviewing questions of custody and compelling circumstances for errors of law); State v. Werowinski, 179 Or.App. 522, 529, 40 P.3d 545 (2002). "Miranda warnings against self-incrimination are required under the Oregon Constitution when a defendant is in full custody or `when circumstances exist which, although they do not rise to the level of full custody, create a setting that is "compelling."'" Id. at 526, 40 P.3d 545 (quoting State v. Widerstrom, 109 Or.App. 18, 21, 818 P.2d 934, rev. den. 312 Or. 526, 822 P.2d 1195 (1991)). In State v. Magee, 304 Or. 261, 265, 744 P.2d 250 (1987), the Oregon Supreme Court described the concept of "full custody," for purposes of Article I, section 12, in this way:

"The concept obviously includes extended official detention in a cell or another enclosure, with or without booking or deprivation of personal belongings. But an enclosure is not essential; one would hardly dispute that a person handcuffed on the street or in his own home is in `full custody.'"

A person is in full custody when he or she is either (1) placed under formal arrest or (2) placed under restraints by police acting in their official capacity. See Magee, 304 Or. at 265,744 P.2d 250 (full custody exists when restraint or detention is "official"). The Oregon constitutional test is comparable to the test for determining whether a person is in custody for Fifth Amendment purposes, and Oregon courts have approached the two questions using the same analysis. See State v. Zelinka, 130 Or.App. 464, 475, 882 P.2d 624 (1994),rev. den. 320 Or. 508, 888 P.2d 569 (1995) (using same standard to determine whether a person is in "custody" for federal constitutional purposes as for state constitution); State v. Brown, 100 Or.App. 204, 211, 785 P.2d 790,rev. den. 309 Or. 698, 790 P.2d 1141 (1990).

The only evidence offered at the pretrial hearing was Sorenson's testimony. He testified that he placed defendant under formal arrest only after conducting the HGN test and receiving responses to his subsequent questions. Although defendant's movements were restrained, in that he was strapped to the backboard, there is no evidence suggesting that he was placed or kept in that restraint by the police. We therefore conclude that the trial court erred when it determined that defendant was in custody under Article I, section 12, or the Fifth Amendment when Sorenson...