Winroth v. Driver and Motor Vehicle Services Branch of Oregon Dept. of Transp. (DMV)

• Decision Date: 01 May 1996
• Citation: 915 P.2d 991,140 Or.App. 622
• Parties: In the Matter of the Suspension of the Driving Privileges of Ronald Sidney WINROTH, Appellant, v. DRIVER AND MOTOR VEHICLE SERVICES BRANCH OF THE OREGON DEPARTMENT OF TRANSPORTATION (DMV), Respondent. CV94415; CA A88259.
• Court: Oregon Court of Appeals

Page 991

915 P.2d 991

140 Or.App. 622

In the Matter of the Suspension of the Driving Privileges of

Ronald Sidney WINROTH, Appellant, v. DRIVER AND MOTOR VEHICLE SERVICES BRANCH OF THE OREGON

DEPARTMENT OF TRANSPORTATION (DMV), Respondent.

CV94415; CA A88259.

Court of Appeals of Oregon,

In Banc.

Submitted on Record and Briefs Nov. 21, 1995.

Resubmitted in Banc March 6, 1996.

Decided May 1, 1996.

Appeal from Circuit Court, Yamhill County; John W. Hitchcock, Judge.

J. Mark Lawrence, McMinnville, filed the brief for appellant.

Theodore R. Kulongoski, Attorney General, Virginia L. Linder, Solicitor General, and Stephen L. Madkour, Assistant Attorney General, filed the brief for respondent.

ARMSTRONG, Judge.

In the early morning hours of September 27, 1994, petitioner was arrested for driving on a public highway while under the influence of intoxicants. ORS 813.010. His driving privileges were subsequently suspended pursuant to ORS 813.410 after the Department of Driver and Motor Vehicle Services (MVD) held a hearing and determined that he had been lawfully arrested and had had a chemical breath test result in excess of the level permitted by law. At the MVD hearing, petitioner argued that the arresting officer did not have probable cause to arrest him until after the officer had conducted an illegal search by administering field sobriety tests. See State v. Nagel, 320 Or. 24, 880 P.2d 451 (1994) (holding that the administration of field sobriety tests constitutes a search under the state and federal constitutions). Petitioner argued, as a consequence, that all the evidence obtained as a result of the search, including the breath test result, had to be suppressed. MVD held contrary to petitioner's position, as did the circuit court on review. We review for substantial evidence and errors of law, Shakerin v. MVD, 101 Or.App. 357, 790 P.2d 1180 (1990), and reverse.

We state the facts consistent with the findings of the MVD hearings officer. On September 27, 1994, at 12:55 a.m., police officer Pulicella observed petitioner's car cross the center line of traffic and then return to its own lane. The officer followed petitioner as petitioner drove into the city of Newberg. He observed petitioner drive for three blocks at 45 miles per hour in a 25-mile-per-hour zone, at which point he stopped petitioner.

The officer asked to see petitioner's driver's license. Petitioner had difficulty finding it in his wallet, twice passing over it before handing it to the officer. The officer noticed that petitioner's eyes were bloodshot and that there was an odor of alcoholic beverage emanating from the car. The officer asked petitioner if he had been drinking; petitioner admitted to consuming two beers. At that point, the officer asked petitioner to get out of the car and perform field sobriety tests. Petitioner asked the officer what would happen if he refused the tests. The officer explained that if he refused, evidence of the refusal could be used against him in a criminal or civil action. See ORS 813.130(2)(a). Thereafter, petitioner agreed to take the tests. The officer administered six different tests and then arrested petitioner.

In State v. Nagel, the Supreme Court held under Article I, section 9, of the Oregon Constitution that field sobriety tests constitute a search. Consequently, to conduct the tests, an officer must either have a search warrant or the search must fall into one of the recognized exceptions to the warrant requirement. 320 Or. at 31, 880 P.2d 451. One exception to the warrant requirement is a search conducted "with probable cause and under exigent circumstances." Id. at 32, 880 P.2d 451. Under that exception, an officer must have probable cause to believe that an individual is driving under the influence of intoxicants before the officer administers field sobriety tests to the individual. The test for probable cause has both an objective and a subjective component. See id. at 32, 880 P.2d 451; State v. Owens, 302 Or. 196, 204, 729 P.2d 524 (1986). That means that the officer must subjectively believe that a crime has been committed, and that belief must be objectively reasonable. Nagel, 320 Or. at 32, 880 P.2d 451.

At the hearing to suspend petitioner's driver's license, petitioner argued that the police officer lacked probable cause to proceed with the field sobriety tests because the officer had not formed a subjective belief that petitioner was intoxicated until after the officer had administered the tests. The hearings officer held to the contrary, finding that if petitioner had refused to perform the field sobriety tests, the officer "would have arrested petitioner for DUII." The hearings officer then concluded:

"Petitioner displayed poor driving when he crossed the center line and went back to his lane, and when he drove 45 mph in the 25-mph zone. The officer then observed that petitioner's eyes were bloodshot, there was an odor of alcohol believed to be coming from petitioner's breath, petitioner passed over his driver license twice while looking for it, and petitioner told the officer he had been drinking beer. Viewed objectively, [the officer] certainly had good reason to believe petitioner was under the influence of intoxicants. Subjectively, if petitioner had refused to perform field sobriety tests, [the officer] would have arrested him for DUII."

Emphasis supplied.)

The issue in this case is whether substantial evidence supports the hearings officer's finding about when the officer subjectively concluded that he had probable cause to arrest petitioner. "Substantial evidence exists to support a finding of fact when the record, viewed as a whole, would permit a reasonable person to make that finding." ORS 183.482(8)(c) (emphasis supplied). In that regard, the officer testified on cross-examination:

"Q. * * * Can you tell me at what point you decided you had probable cause to arrest him?

"A. Well, I guess technically * * * I knew that he had made mistakes on pretty much all of the tests. I personally * * * usually will go through and do at least five tests before I even make a decision. * * *

" * * * * *

"Q. And that's what you're trained to do, but if you look at * * * the test and everything and I'm now asking you to look back with 20/20 hindsight. At what point did you have probable cause?

"A. After the third test.

" * * * * *

"Q. It was like I could arrest him now if I wanted to?

"A. Correct. And again, in the training that I've had by the State Police, they've * * * gone through and brought up all of these tests. However, the three tests that they, you know, will stipulate on and most of the state troopers that I have talked with will do three tests. They'll do the HGN, one-leg-stand and the walk-and-turn and that's it and then they'll go ahead and make a decision from there.

"Q. Okay. In fact you have a little formula almost. If they do certain on those tests, perform a certain way, then you'd have probable cause?

"A. Correct."

(Emphasis supplied.)

On redirect examination, the hearings officer asked the police officer if he believed that he would have had probable cause to arrest petitioner if petitioner had refused to take the field sobriety tests. The officer responded:

"A. I--well, to be honest with you I remember specifically that evening I have never had anybody not do the field sobriety test and just say no. You know, I had no idea what his blood alcohol content was going to be. Based on his driving, you know, which technically, I mean, I guess his driving technically wasn't really all that bad, you know. I mean he crossed the centerline and he was speeding. However, I've seen a lot worse than that with somebody that's had--that has been out and, you know, had a recorded [blood alcohol content] of a .125. I've seen a lot worse driving than that. * * * I specifically remember when he said, if I don't do the test. I remember running through my head, please don't say that, because--I guess, I don't know * * *.

"Q. I want to make sure that you understand my question. I'm not talking about evidence that you would have needed to make a conviction.

" * * * * *

"Q. I'm talking about whether or not you believe you would have had probable cause to arrest him [before he performed the field sobriety tests]?

"A. Well, * * * they pay me to be able to make quick decisions like that and technically, I guess, at that time if he would have refused the field sobriety tests, then I guess I would probably [be] thinking, oh you've got something more to hide than I think you do. And because I can smell the alcohol then probably I would have arrested him at that point in time."

(Emphasis supplied.)

There is no question that the facts support an objective finding of probable cause. ¹ Whether there is substantial evidence to support the hearings officer's finding depends on whether a reasonable person could conclude on this record that the officer subjectively believed that he had probable cause to arrest petitioner before he asked petitioner to perform the field sobriety tests. Shakerin, 101 Or.App. at 360, 790 P.2d 1180.

In Owens, the court explained that the test for the subjective prong of probable cause

"is not simply what a reasonable officer could have believed when he conducted a warrantless search or seizure, but it is what this officer actually believed, based upon the underlying facts of which he was cognizant, together with his own training and experience. * * * What is required is that the officer formulates such a basis to himself at the time he acts."

302 Or. at 204, 729 P.2d 524 (emphasis in original and supplied).

The facts of this case show unequivocally that Pulicella did not "actually" believe that he had probable cause to think that petitioner was driving under the influence when he asked petitioner to perform the field sobriety tests. Pulicella testified consistently and repeatedly that he was not sure that he had probable cause until after pet...