Machuca, urine tests, and an argument to make in every DRE case.
by: Rjohnson • June 8, 2012 • no comments
I had argument yesterday in the Court of Appeals on a Machuca-urine test case. The trial court suppressed the urine result on the theory that, per the Court of Appeals opinion inState v. Machuca, 231 Or App 232 (2009) (reversed in part by State v. Machuca, 347 Or 644 (2010)), the consent was coerced by the implied consent law. The Court of Appeals is showing no inclination to revisit that decision. But in McMullen last week, the court decided that drug metabolites in urine are evanescent and thus can be seized under the exigent-circumstances exception to the Search Warrant requirement.
In my case, the state as the appellant, argued first. Judge Brewer's first question to opposing counsel was insightful and wise and also helpfully suggested the argument that I planned to spend all of my time on: if the consent is invalid, then what is the practical result for the state to execute a search based on exigency? The state's response was "because the state was authorized to search, they can demand that the defendant pee in a cup, so there's no problem."
`To no one's surprise, I had a different answer. I think that, if the consent is invalidated, then the state needs to prove inevitable discovery or some other exception to the suppression rule. That means that the state has to put on evidence that, if the defendant declined to pee in a cup, they would cart him off to the hospital for a forced catheterization. That sounds like enough hassle and expense and unpleasantness that I'm not sure the cops would actually do it. (I'd probably advise a client to just use the cup, if it comes to that.) As the court noted, to my mild dismay, my rule would have a substantial effect on all DUII prosecutions; I'm not sure how they could get a breath test result in, for instance. But my argument has the advantage of being required by recent Supreme Court decisions on what to do when an invalid consent is used to obtain evidence, especially State v. Hall, 339 Or 7 (2005). And, although there is some force to the state's argument that the invalid consent to give urine shouldn't invalidate the result in a DRE case, it's a much harder question if you assume, e.g., that the police officer pointed a gun at the defendant in order to induce him to pee in a cup. In that case, the state clearly would not be able to rely on the coerced consent. But how is a consent induced by the Implied Consent scheme legally different?
