OSC grants review to DUII case

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by: Ryan • May 10, 2014 • no comments

The Oregon Supreme Court has allowed review in State v. Mazzola (appeal from Josephine County Circuit Court; opinion reported at 260 Or App 378, 317 P3d 360 (2013)). The question presented is:

Does an officer's suspicion that a person is driving under the influence of a controlled substance constitute a per se exigency such as to always allow the warrantless administration of FSTs?

The Court of Appeals opinion is here. The opinion notes the conclusions of the trial court, which were:

The state argued that the FSTs were justified by two exceptions to the warrant requirement: consent and exigent circumstances. The trial court ruled that the FSTs were not justified by the consent exception; the court concluded that, after taking and passing the HGN test, defendant merely acquiesced to the officer’s statement that they were going to do more tests. But, the court ruled that the FSTs were justified by the exigent-circumstances exception; the court concluded that the officer had probable cause based on the signs of intoxication he had observed and that there were exigent circumstances because defendant’s intoxication would dissipate. Specifically, regarding the exigency, the court concluded that “there w[ere] exigent circumstances based on the dissipation rate of whatever the substance * * * that [defendant] had consumed to intoxicate her.”