OREGON DUII LEGAL UPDATE

ODAA Summer ConferenceSunriver

2012

Sr. AAG Deena Ryerson, DOJ

Ignition InterlockHB 4017 Requires an ignition interlock for 5 years

after the ending date of the longest suspension/revocation period for the following convictions (associated with a DUII conviction): Manslaughter I and II Criminal Negligent Homicide Assault I Aggravated Vehicular Homicide Permanent revocation pursuant to ORS 809.235

Effective January 1, 2013

Synthetic Marijuana

Schedule I controlled substance

• OAR 855-080-0021

• Not considered marijuana for purposes of charging someone with possession etc.

• ORS 475.752 criminal charge (renumbered from ORS 475.840 in the 2011 legislative session)

Measure 73

SB 3951. SB 395 codifies Ballot Measure 73 with regards

to felony DUIIs in ORS 813.011 2. Deals with the crime seriousness ranking for

felony DUIIs In effect creates two types of DUIIs:

CSR 6 = Felony DUII based on 3 or more priors in 10 years CSR 4 = Felony DUII based on 2 priors in 10 years (OAR 213-

017-0008) Regardless of rank for M73 DUII, minimum sentence is

90 days:

OAR 213-009-0001(1) "If a mandatory prison sentence is required or authorized by statute, the sentence imposed shall be that determinate sentence or the sentence under these rules whichever is longer.“

Measure 73SB 3953. Discrepancy with statute

Only subsequent DUIIs to a M73 felony DUII conviction will be a felony DUII no matter how long has passed

If a person has a previous felony DUII based on 3+ priors in 10 years, may still be eligible for misdemeanor

4. Dept of Corrections will reimburse costs to county for M73 jail time

Effective June 30, 2011

Measure 73

Conviction for Felony DUII under ORS 813.010(5) and ORS 813.011

Can be plead in one count (sufficient facts must be alleged that would provide the basis for conviction under both)

Benefits:• ORS 813.010(5) – presumptive prison• ORS 813.011 – subsequent DUII a felony

Judgment: Have the court impose in the judgment the 90 day

mandatory minimum under 813.011 even if court imposed a longer prison sentence under 813.010(5)

The person is then “sentenced ……under this section” as required by 813.011 and future DUIIs will be a felony

PLEADING ISSUE

Picking a Theory in Alcohol and Controlled Substance Cases –

Issue: Jury Concurrance (Boots)

ORS 809.265 (1)(b) – court suspension for a conviction for DUII “if the person was under the influence of an inhalant or a controlled substance”

ORS 813.010 (2) – Must plead CS and “is either proved at trial or is admitted by the person through a guilty plea.”

PLEADING ISSUE

Recommendation for Alcohol and ControlledSubstance Cases:

1. Plead the DUII in multiple counts (merges at sentencing)

2. Jury instruction on which theory they believe the person is impaired by, ie. alcohol, alcohol and controlled substance, or controlled substance.

PLEADING ISSUE Pleading for Manslaughter I in the event the

jury finds D guilty of Manslaughter II (CS 9 vs 8):

AND Pleading for Assault II in the event the jury

finds D guilty of Assault III (CS 8 vs 6)

"The state further alleges that during thecommission of this crime, the defendant wasoperating a motor vehicle while under the

influenceof intoxicants" OAR 213-018-0047

Sober Diversion

Issues??

Medical MJ holders?

Effect of Reading Implied Consent

Consent (Breath, Blood, or Urine)

• Court of Appeals ruling still stands that after a person is read ICRC a consent to give urine is rendered involuntary

• State v. Moore, 247 Or App 39 (2011)• Crash resulting in fatality• Office read ICRC before getting blood and

urine• Prosecutor did not establish exigency• Affirmed coercive nature of ICRC

Effect of Reading Implied Consent

Consent (Breath, Blood, or Urine)

• If ICRC was read prior to urine test, there may be factors that can render consent voluntary:

The defendant spoke to counsel Statements by defendant that indicate

the threat of license suspension or fine is not material

“I don’t care, my license is already suspended”

Volunteers to take “tests” before officers ask

Dialogue between officer and defendant

DOJ RECOMMENDATION for DRUG DUII

• For cases where you want to obtain urine, read ICRC Section I for breath test; THEN…

• Ask for express consent for a urine test.

• Fill out express consent form.

DO NOT read ICRC Section II prior to requesting urine because it is not necessary under ORS 813.140 and will render consent involuntary.Read Section II ONLY if a person refuses to give urine

CONSENT TO TAKE A URINE TEST 

I, ______________________, freely and voluntarily consent to provide a urine sample. No threats, inducements, or promises have been made to make me consent against my will.  _____________________ ______________Signature Date    _____________________ ______________Witness Date

Consent Form

Alcohol and Exigency

State v. Machuca

Exigency – ALCOHOL CASES ONLY• Alcohol is per se exigent• “evanescent nature of a suspect’s blood

alcohol content is an exigent circumstance”• Do not have to prove that a warrant could

have been obtained faster than the actual time it took to get a breath or blood test

• In a “rare” case where there is “significant” delay, the time it would take to get a warrant might be relevant

State v. Martinez-Alvarez,245 Or App 369 (2011), 9/8/2011

Facts:

• 11:00 pm – Stop for traffic infraction• D performed and failed FSTs• D was place under arrest• Officer did not transport D right away

but waited for a tow to arrive• Sometimes it “takes awhile”

• Approx. 12:00 midnight transport to jail

Facts:

• Officer Testified:• Nothing prevented him from working on the narrative

portion of a search warrant while they waited for the tow

• He did not consider applying for a telephonic warrant • He did not know how long it would take to get a

telephonic warrant but estimated as little as 30 minutes if a “judge were available right away”

• He acknowledged that alcohol dissipates from the body over time

• HOWEVER,• He was not concerned about the loss of evidence for

several hours• Defendant took breath test at 12:31 am

• BAC .13• 1 hour and 31 minutes from stop to breath test

Opinion:

• Court of Appeals:• QUESTION:

• Is this case the “rare” case where a warrant could have been obtained and executed significantly faster than the actual process otherwise used under the circumstances?

• 2 Considerations:• The actual loss of BAC over time which

creates exigency• The time that it takes to obtain a search

warrant results in the dissipation of BAC

Opinion:

• Court’s Considerations:• “The standard is not one of “20/20

hindsight”• Must consider officer’s perspective based on

“information known or reasonably discernible in the totality of circumstances of the particular encounter”

Creating a Record:

KEY ISSUES:1. What did the officer know at the time of the stop and arrest ??

Did the officer know in advance that there would be inevitable down time during the investigation and how much time would that be?

2. Could a warrant have been obtained?

• Account for all the officer’s time so any "down time" (unaccounted time) is reduced to a minimum or completely eliminated AND

• Determine how long the warrant process REALLY takes -- including drafting an affidavit and search warrant, locating a judge, and executing the warrant.

• If there was any “down time,” it was not enough to get a warrant

Creating a Record:• Things to Consider:

• The time clock begins when the officer forms probable cause – not time of stop!

• Account for officer’s time after PC formed• Routine investigation questioning• FSTs

• Important part of investigation• Evidence of physical impairment can diminish if

wait• Could potentially reduce PC

• Arrest• Post arrest activity

• Search incident to arrest• Inventory of car• Dealing with passengers

Creating a Record:• Things to Consider:

• Account for time cont.:• Wait time for tow

• What is officer doing during wait time• Could officer start the warrant process during

wait time? • Booking procedure at jail• Does officer have back-up available• Breath Test

• Reading of implied consent• Requests to talk to counsel/others• 15 minute observation period• Any wait time for intoxilyzer

• Other• Investigating crash/other emergency/necessary

duties

Creating a Record:

• Things to Consider:• How long would warrant process take:

• Include application process, the time it would take to create, obtain, AND execute (breath vs. blood).

• Establish process and timeframes IN DETAIL• Could the warrant process start during the

“down time” – any limitations?• Cover telephonic AND traditional process• Explain technology limitations (can you do it

on your car computer???)• How long with or without judge available

Exigency and Warrant Clock

State v. Amos, 235 Or App 637 (2011) Facts:

D was stopped at 8:00pm and arrested for DUII at 8:24pm

D gave a breath sample at 9:22pm The officer testified that a warrant would take 1 ½

to 2 hours to obtain Held:

Not a rare case where warrant could be obtained faster

D was transported promptly after FST’s and breath test was conducted 58 min after arrest

Testimony showed that warrant would have taken longer

Implied Consent

State v. Cabanilla, 241 Or App 351 (2011)

Affirmed without Opinion: Defendant’s refusal to submit to a breath test was

admissible despite defendant’s claims that he did not understand the implied consent warnings

Oregon Supreme Court: March 1, 2011 The state does not have to prove that the

defendant understood the ICRC just that the rights were read to him

Law enforcement is not required to read ICRC in the defendant’s native language.

Attempted DUII

State v. Baty, 243 Or App 77 (2011) Facts:

Officer noticed that D’s car was in a handicapped spot with a permit

The permit was registered to a person whose DOB is in 1926

When D came to her car, officer noticed that she did not look 84 yo – D was impaired

Officer testified that he saw her drive “probably several feet” in reverse but not forward

Officer wrote in report “attempted to back up”

Attempted DUII State v. Baty, 243 Or App 77 (2011) Facts:

On cross officer was shown a picture of the car that appeared to be parked all the way forward in the parking spot

Officer could then not say if she actually backed up or was preparing to

Defense asked the court to give the jury “Attempted DUII” as a lesser included offense of DUII and the court declined

Defense also argued that the handicapped spot is not a premises open to the public

Should the Jury be Instructed on Attempted DUII?

1. Yes2. No

Yes N

o

0%0%

Attempted DUII State v. Baty, 243 Or App 77 (2011) Held:

Handicap parking spots are premises open to the public

Because a jury could have found that defendant did not in fact drive her car, but merely took a substantial step to do so, she was entitled to an instruction on “attempted DUII.”

Note: If driving is seen or there is circumstantial evidence

to driving, Att DUII should not be an available option May be possible when person takes steps to drive Implied Consent Statute applies to DUII not Att DUII

Attempted DUII State v. Minow, 246 Or App 179 (2011) Facts:

911 call from man who sees bar employee arguing with man in a red pickup about whether the “drunk” person should drive – gives license plate number

Officer runs plate on way to scene and finds out the person is felony revoked

Officer gets to scene and sees the bar employee standing in the open driver’s side door with his back to the cab

He see another man about an arm’s length away Officer believed the employee was trying to block

the impaired person from getting in the truck D ultimately admitted to driving to the bar and had

keys in his possession Officer believed he had PC for DWR and Att DUII

Are the Facts Sufficient to Constitute Attempted DUII?

1. Yes2. No

Yes N

o

0%0%

Attempted DUII State v. Minow, 246 Or App 179 (2011)

Held:

Officer had PC for attempted DUII Court relied on the following facts:

D was intoxicated D had keys in his possession D was standing in front of the open driver’s side door

trying to get in and was only prevented from doing so by another

D’s actions constituted a “substantial step” toward the crime of DUII.

Sleep Driving State v. Newman, 246 Or App 334 (2011) Facts:

D took his car to dinner then had friends drive him home

D goes home and goes to sleep D is stopped later in the evening after committing

several traffic infractions D blows a .15 At trial D says he was not aware of leaving his

apartment and driving his car D argues that the evidence of his failure to

remember is admissible because DUII involves a “voluntary act”

Is the Evidence of Sleep Driving Admissible?

1. Yes2. No

Yes N

o

0%0%

Sleep Driving State v. Newman, 246 Or App 334 (2011)

Held:

DUII is a strict liability crime that does not require the state to prove intent of impairment or driving

The evidence of sleep driving that defendant sought to introduce was irrelevant and should not be admitted

Voluntary Intoxication and Reckless Standard

State v. McKay, 247 Or App 19 (2011) Facts:

D drove his friend in his truck after a long day of drinking – both were heavily intoxicated

D drove the truck into a tree seriously injuring his friend

D was charged with Assault II, DUII, Reckless Driving, and Criminal Mischief II

The mental state for all charges, except DUII, is “recklessly”

D argued that his due process rights were violated because ORS 161.125(2) prevented the jury from considering voluntary intoxication when determining if he acted with a reckless state of mind

Are Defendant’s Due Process Rights Violated?

1. Yes2. No

Yes N

o

0%0%

Voluntary Intoxication and Reckless Standard

State v. McKay, Or App (2011)

Held: ORS 161.125(2) applies to the mental state of

recklessness, specifically the defendant’s awareness of a risk

Voluntary intoxication is immaterial when deciding whether D acted recklessly

Mental Disease or Defect and Reckless Standard

State v. Nebert, 244 Or App 80 (2011) Facts:

D was charged with reckless driving and sought to offer evidence of a mental disease or defect to negate the “reckless” mental state

The trial court ruled for the state that evidence of a mental disease or defect cannot extend to “reckless” crimes

Held: “Reckless” includes a subjective component that

may be affected by a mental disease or defect Evidence may be admitted

Jurisdiction State v. Smith, 246 Or App 614

(2011) Facts:

Madras PD officer gets a report of a hit and run Sees a car matching the description and

attempts to initiate a traffic stop D continues north without stopping and heads

toward the Warm Springs Reservation D is swerving Officer calls Warm Springs PD and they were

waiting at the border D was arrested for DUII by Madras officer D was a tribal member

Jurisdiction State v. Smith, 246 Or App 614

(2011)

Facts: Madras PD officer received permission to take D to

county jail D argued that Madras officer did not have the

authority to stop and arrest D on the reservation

Did the Officer Have the Authority to Stop and Arrest?

1. Yes2. No

Yes N

o

0%0%

Jurisdiction State v. Smith, 246 Or App 614

(2011)

Held: An non-tribal officer can arrest a person for a

traffic offense on the reservation if the offense was committed in the officer’s presence in that officer’s jurisdiction the officer immediately pursued the person the officer cited the person immediately at the end of

the pursuit

Stop State v. Simpson, 245 Or App 152 (2011) Facts:

Officer gets call from dispatch of an accident Information received:

Color, make and license plate of car Belief that driver is intoxicated Caller remained at the scene

Officer sees car matching description within 1 block of scene of crash and stopped the car (no traffic violations observed)

Officer did not go to scene and did not see damage to D’s car

Stop State v. Simpson, 245 Or App 152 (2011)

Findings by Trial Court: When officer made the stop, he did not know if

caller would stay at scene He thought that the caller was the other driver The reliability of the informant was not present

however, Substance of the report was detailed enough to be

reliable Enough to support RS of DUII to justify stop

Was the Informant’s Information Sufficient to Provide Officer RS of Crime?

1. Yes2. No

Yes N

o

0%0%

Stop State v. Simpson, 245 Or App 152 (2011) Findings by Court of Appeals:

Guidance to determine reliability of informants report1. Is the informant exposed to possible criminal or civil

prosecution if report is false?• Satisfied if informant gives name or information is

delivered to police in person

2. Is the report based on personal observations of informant

• Satisfied if information contains specific detail

3. Does the officers own observations corroborate information

Satisfied by observing illegal activity or finding what the informant described

Stop State v. Simpson, 245 Or App 152 (2011)

Findings by Court of Appeals: The information given was of sufficient quantity and

quality to give rise to a reasonable suspicion that defendant committed the offense.

Even though officer did not know informant’s name, the report was in sufficient detail to infer that the information was not fabricated

Even though all information is not corroborated, if there is nothing to contradict the information known, that must be taken into consideration.

Stop State v. Braukman, 246 Or App 123 (2011) Facts

Officer sees D pulling out in front of a car causing the car to slam on brakes then sees D make an improper left turn

Officer stops D and notices: D has small dog, sunglasses and is eating hamburger No odor of alcohol D gave license and insurance but could not find registration Cheeks and neck were flushed and reddish Movements were slow, lethargic and D was not focused D spoke in unusually low voice Officer ran license then came back and asked what D had to

drink – D admitted to 1 beer earlier D consented to FST’s and ultimately arrested

Trial court found lack of reasonable suspicion to extend stop

Did Officer Have RS of DUII?

1. Yes2. No

Yes N

o

0%0%

Stop

State v. Braukman, 246 Or App 123 (2011)

Held: Trial court found alternative explanations for

defendants demeanor and appearance Court of appeals ruled that observations of officer were

sufficient to form RS for DUII to continue stop Lack of odor of alcohol is not dispositive Other explanations for D’s appearance does not

negate observations

Stop State v. Aronson, 247 Or App 422 (2011) Facts:

Officer sees D in a parking lot pull car forward and hit a concrete curb

D then drives out of parking lot at 5 mph, drive at the same speed around the block and then back into the same parking lot and back to the same parking space

D’s car was parked in an angle a few feet where a car would normally park

Officer stopped his car at an angle behind D at about 1.5-3 car lengths behind but does not turn activate lights

Officer does shine spot light “for officer safety reasons” on D’s car mirror and approaches – D is obviously impaired

D argues no RS for stop and D was not free to leave

Did a Stop Occur?

1. Yes2. No

Yes N

o

0%0%

Stop

State v. Aronson, 247 Or App 422 (2011)

Held: No stop occurred:

Officer did not park car in a manner where D was not free to leave

There was no evidence that the way the spotlight was shined at defendant prevented D from driving away safely

No show of authority or restraint of liberty where a person would not have felt free to leave

Venue State v. Davis, 248 Or App 263 (2012)

Facts: D was observed by two eye witnesses entering a

restaurant in Medford, Oregon intoxicated D was then seen leaving the restaurant with 4 children Officer was called and told that the restaurant D was

leaving from was “at 4th and Jackson ….in the middle of town”

The officer received specific updates of D’s location as he headed towards her

The officer explained in detail where he located her and eventually stopped her

D was taken to Medford PD D moved for a JOA claiming venue was not established

Was Venue Established?

1. Yes2. No

Yes N

o

0%0%

Venue State v. Davis, 248 Or App 263 (2012)

Held: Venue is not an element of DUII but is a material

allegation that must be proven beyond a reasonable doubt

The state is not required to prove venue by direct evidence but may do so through inferences drawn from circumstantial evidence but not speculation

The specific directions describe by the officer was sufficient to establish that the defendant was in Medford

The jury can infer that Medford is in Jackson County The court cautioned against “stacking” too many

inferences

Venue

State v. Mills, 248 Or App 648 (2012)

Facts: Testimony that a City of North Plains officer saw D

speeding near MP 57 on Hwy 26 and pulled him over near MP 56

Prosecutor failed to ask officer if the offense occurred in Washington County

Prosecutor argued that a reasonable fact finder could find that North Plains was in Washington County

Was Venue Established?

1. Yes2. No

Yes N

o

0%0%

Venue

State v. Mills, 248 Or App 648 (2012)

Held: Venue was not established No evidence to identify the location of North Plains

or MP 56 and 57 on Hwy 26 in relation to Washington County

Judicial notice not appropriate because there was not enough evidence in the trial record to support a reasonable inference of venue

Diversion State v. Wilson, 247 Or App 791 (2012)

Facts Defendant entered diversion 2/25/2008 to be

completed by 2/24/2009 Defendant failed to pay the filing fee for diversion

prior to the completion of the diversion period and did not seek an extension

In August of 2009, the state filed a motion to show cause why the diversion should not be terminated and a guilty plea entered

Prior to the hearing, D paid all her fines At the hearing D argued she was indigent and asked

the court to waive the fee The court waived the fee and dismissed the diversion

Does the Court Have the Authority to Waive the Fee and Consider the Diversion Complete?

1. Yes2. No

Yes N

o

0%0%

Diversion State v. Wilson, 247 Or App 761 (2012)

Held The court does not have the discretion to waive the

fee that was not paid during the period of diversion The diversion must be terminated and a guilty plea

entered.

Statutory Counterpart State v. Rutherford 244 Or App 113 (2011) Facts:

D has two prior DUII convictions in Nevada and is found guilty of a DUII in Oregon

State asks for permanent revocation Defense argues that Nevada’s first time DUII is more

like Oregon’s diversion and therefore not a statutory counterpart

Held: Prior conviction counts as counterpart Not similar to Oregon diversion because conviction

is not avoided and can be used to enhance penalties

Attorney-Client Privilege State v. Taylor, 247 Or App 339 (2011) Facts:

D was arrested for DUII and was taken to the station to blow into intoxilyzer

D testified during trial about his decision to take the breath test

The prosecutor cross examined D about the breath test then asked if it was something that he and his attorney talked about since his arrest

Held: D did not waive atty-client privilege just by testifying

because he did not disclose some of the communication Not harmless error because no way to know if the jury

relied on the information to determine credibility and intoxication

Evidence - BAC State v. Eumana-Moranchel, 243 Or App 496

(2011) Facts:

D was stopped at 3:08am and arrested for DUII BAC was .06 at 4:42am Crime lab testified using Widmarks Formula and

back extrapolation to give a range of D’s BAC at time of driving

Defense argued Johnson in that the state could not offer other forms of evidence in place of the actual BAC results

Evidence - BAC State v. Eumana-Moranchel, 243 Or App 496

(2011) Held:

Crime lab testimony was admissible Opinion testimony of D’s BAC at the time of driving

was derived from a chemical analysis of D’s breath: i.e.. the original BAC

Supreme Court accepted review

Case Law

State v. Rambo, 250 Or App 186 (2012) Facts:

D was pulled over after been seen driving poorly Arresting officer believed that D was under the

influence of something other than alcohol D admitted to taking 70mg of methadone D gave a urine sample but it was clear and cold

and refused to submit to a second test D submitted to a DRE evaluation DRE saw signs consistent with a narcotic analgesic DRE testified about his extensive training and

experience

Case Law

State v. Rambo, 250 Or App 186 (2012) Facts:

DRE testified about Specialized training Accuracy rate Experience with DUIIs His opinion that based on the tests, interaction with D

and her statements, that D was UI of a narcotic analgesic

D argued that DRE’s opinion was not admissible

Case Law

State v. Rambo, 250 Or App 186 (2012)

Trial court ruled DRE could not testify to DRE protocol either specifically or as a whole

Trial court excluded: Step 3 – preliminary physical examination (pulse) Step 6 – pulse, blood pressure, body temp Step 8 – muscle tone

Based the exclusion on the fact that the steps have a scientific basis therefore have a prejudicial effect

Case Law

State v. Rambo, 250 Or App 186 (2012)

Trial court ruled DRE could testify to his opinion based on: Blood alcohol content D’s statements HGN FST’s Pupil size (except dark room) Needle injection sites

Opinion was based on non-scientific expert opinion evidence or alternatively lay opinion evidence

Case Law

State v. Rambo, 250 Or App 186 (2012)

Court of Appeals Confirmed that the general admissibility of the

complete protocol does not determine the admissibility of each step

The DRE is allowed to give a non-scientific opinion of impairment even though it is based in part on some steps of the protocol that were inadmissible due to an incomplete protocol

The court never reached whether the DRE’s opinion is admissible as lay opinion evidence

Less Than 12 Step Cases

The state’s position is that individual components of protocol are admissible as nonscientific expert evidence Not new or novel (i.e. body temp, pulse, BP,

checking pupil size) Not type of evidence that needs scientific

explanation – Rule 702 Must do a pre-trial hearing on the

admissibility of the 11 steps See Fuller brief

Less Than 12 Step Cases

See Sampson, “Individually, most of the steps of the protocol do not require an overly technical explanation of their bearing on the DRE officer’s conclusion. Because the protocol as a whole merely synthesizes these simple steps, we conclude that the clarity factor weighs in favor of admission.”

Ultimate opinion of DRE – should be allowed by court See Rambo

What do you do if the defense does not do a pre-trial motion to suppress steps? Get stipulation

Admissibility of Urine

State v. McMullen, 250 Or App 208 (2012) Facts

D was stopped for a traffic violation around midnight

Officer thought D was under the influence of drugs

D was taken to the station around 1:15 am after dealing with a passenger

D was read ICRC and was asked to give a urine sample

D gave a urine sample at 2:00 am The state argued that the urine was admissible

based on PC and exigency

Admissibility of Urine

State v. McMullen, 250 Or App 208 (2012) Court of Appeals

Once an officer has PC to believe some one is UI of a controlled substance, the exact identity of the drug does not matter in determining whether exigency exists

Since there are some drugs that require obtaining urine more quickly, and because officers cannot be expected to know which substance a person has taken – exigency is present

Admissibility of Urine

State v. Walker, __ Or App __ (August 8, 2012)

Facts: Defendant was charged with 2 counts of DUII,

PCS Meth and Reckless Driving Defendant appealed his convictions and the

Court of Appeals remanded one count of DUII due to the fact that the lab report was erroneously admitted.

On remand, the state sought to introduce the urine results under a PC and Exigency theory

The defense argued that there was no exigency

Admissibility of Urine

State v. Walker, __ Or App __ (August 8, 2012)

Held: The urine is admissible under PC and Exigency “If police have probable cause to believe that

evidence of a controlled substance will be in a suspect’s urine, the exigency exception justifies a warrantless seizure and search of the suspect’s urine in most cases.”

Miles Instruction

State v. Massey, 249 Or App 689 (2012) Facts

D is seen driving erratically including veering across two lanes and back, onto the shoulder, and almost hitting a pole

D admits to drinking a “few drinks”, smelled strongly of alcohol, slurred speech, and was stumbling

Defense witnesses took the stand and said the 71yo defendant took medication that made him dizzy.

Defense witnesses also blamed D’s slurred speech on hearing loss and his poor balance on physical injuries

Miles Instruction

State v. Massey, 249 Or App 689 (2012) Facts

The prosecutor asked for the Miles Instruction arguing that the combination of D’s medical issues and alcohol caused D’s impairment

No testimony was offered during trial to support the idea that the defendant’s physical condition was more susceptible to the alcohol than he otherwise would be

The trial court applied the Miles Instruction

Miles Instruction

State v. Massey, 249 Or App 689 (2012) Held

Without evidence of defendant’s condition making him more susceptible to the alcohol, Miles Instruction cannot be given

Not harmless error in this case because the court relied on the instruction to reach its verdict

COA reversed and remanded for a new trial.

SFST Evidence

State v. Morgan, 251 Or App 99 (2012) Facts

D was stopped for bad driving D had signs of impairment and did poorly on

SFSTs D blew a .00 and a DRE was called in D admitted to taking a CNS stimulant and the

DRE ultimately concluded D was under the influence of a stimulant

During trial, the defense attorney tried to use SFST studies to cross examine both the arresting officer and the DRE

SFST Evidence

State v. Morgan, 251 Or App 99 (2012) Facts

Defense tried to establish through the study that SFSTs are designed to estimate blood-alcohol content and not driving impairment

The prosecutor objected and the trial judge did not allow the defense to read the excerpts of the studies into the record to cross the officers

The ruling was based on hearsay, lack of foundation, and relevance

SFST Evidence

State v. Morgan, 251 Or App 99 (2012) Held

The defense was entitled to cross the officers using the SFST studies

OEC 706 allows for a witness to be crossed regarding statements made in a published treatise or periodical etc. it is established as a reliable authority (done through testimony, admission of a witness, other expert testimony, or judicial notice)

Statements are not hearsay because they are used for purposes of impeachment not substantive evidence

SFST Evidence

State v. Morgan, 251 Or App 99 (2012) Held

The witness need not be personally familiar with the document if its reliability is otherwise established

The cross was relevant because the defense theory was that the police mistakenly believed that D was under the influence of alcohol and they administered FSTs which do not reliably assess driving impairment of a person who has ingested a prescribed dose of medication

SFST Evidence

State v. Morgan, 251 Or App 99 (2012) Analysis

The ruling DOES NOT hold that SFST’s are not reliable to determine a person’s impairment and/or driving impairment.

The ruling simply allows the defense to use the studies and other recognized materials to cross officers

SFST’s are used to determine alcohol AND drug impairment

SFSTs are part of the DRE protocol which has been accepted as scientific in Sampson

Know what the studies say to be able to be effective on re-direct.

CONTACT INFORMATION

Deena RyersonDepartment of Justice610 Hawthorne Ave SE,

Ste210Salem, Oregon 97301Wk – (503) 934-2030Cell – (503) 991-0313

deena.a.ryerson@doj.state.or.us