Almost Never an Exigent Circumstance
by: Jonah Morningstar • January 16, 2011 • no comments
Defending a client who has been charged with DUII-controlled substance generally involves attacking the evidence that the state has collected. One of the most difficult pieces of evidence to counter is a urine test showing that the defendant had the same drug metabolites in his or her urine that the DRE predicted at the time of the arrest. Even if the defendant refused to consent to a urine test, the state will try to use the refusal to try to prove "guilty knowledge".
Clearly, the state's ability to obtain a urine test (or breath or blood test) or use a defendant's refusal as evidence of guilty knowledge makes obtaining a conviction much easier for the state. That is precisely why the legislature established the entire implied consent statutory scheme. However, as the Court of Appeals ruled in State v. Machuca, 231 Or App 232 (2009), rev'd, Machuca, 347 Or 644 (2010), the implied consent statute is coercive and any "consent" obtained pursuant to that statute is invalid. The purpose of this post is to help defense practitioners win a motion to suppress either (1) a urine test result obtained when a defendant "consented" to the test pursuant to the implied consent statute or (2) a defendant's refusal to consent to a urine test.
As the Court of Appeals ruled in Machuca, 231 Or App at 240, a defendant is not legally required to consent to search pursuant to the implied consent statute and-in the absence of exigent circumstances-any "consent" obtained by threatening a defendant with the implied consent consequences is invalidly coercive. The Court of Appeals also ruled that no exigency supported the warrantless search and seizure of the defendant's blood. Id. at 246-47. More analysis of the Court of Appeals Machuca opinion | |can be found here .
The Supreme Court's decision in Machuca reversed only the Court of Appeals' conclusion that exigent circumstances did not exist with respect to rapidly dissipating alcohol in a defendant's blood. Machuca, 347 Or at 657. As relevant to this argument, the Court explicitly declined the state's invitation to reverse the Court of Appeals' conclusion that the defendant's consent was invalid. Id.
Taken together, the Machuca cases instruct that a search of the defendant's urine or blood pursuant to the coercive implied consent statutory scheme is valid only if it is justified by the exigency exception to the warrant requirement. A defendant's purported "consent" to a urine test is invalid. That is, the state must rely on the exigency exception to the warrant requirement to admit breath, blood, or urine tests obtained through the implied consent statute.
In a drug DUII case, exigent circumstances do not support the warrantless seizure and search of defendant's urine. As the Supreme Court discussed at length in Machuca, 347 Or at 657, evidence of alcohol in a defendant's blood often creates an exigency because of the "evanescent nature of a suspect's alcohol content[.]" The court also noted that prompt testing is necessary to "determine accurately the level of alcohol in a suspect's blood at the time of the alleged crime[]" by obtaining an accurate dissipation rate. Id. at 654 (quoting State v. Milligan, 304 Or 659, 666 (1988)). That is, blood alcohol evidence that shows a defendant's level of intoxication at the time of the alleged crime dissipates rapidly and cannot be determined through back extrapolation without an accurate dissipation rate.
In contrast, the need to test a defendant's urine for drug metabolites does not create an exigent circumstance. Evidence showing the presence of drug metabolites in urine (1) does not dissipate rapidly and (2) does not give any information on a defendant's actual level of impairment at the time of driving (that is, it does not show that there were active drugs or the amount of active drugs in a defendant's system at the time of driving).
Unlike a blood or breath test that tests actual alcohol or drug levels, the amount of drug metabolites in urine does not make it more likely that a defendant was intoxicated at the time of the alleged crime. When a defendant is arrested on suspicion of DUII-alcohol, a breath or blood test for alcohol show that, shortly after driving, the defendant had alcohol in his or her blood, and the test even shows the defendant's actual amount of alcohol in his or her blood. In contrast, a urine test for drug metabolites provides a simple yes-or-no answer: has the defendant used this drug at some point in the past?
Thus, a delay in obtaining a urine sample does not affect the quality of the evidence that the state can obtain, as long as the urine can be obtained during the detection period for the drug suspected. Most drug metabolites are detectible for weeks or days, much longer than the time it would take to obtain a warrant (telephonically or otherwise). In fact, the process of obtaining a telephonic warrant might be faster in some instances than going through the entire 12-step DRE protocol for a urine test. As a result, almost any of drug(s) that a defendant would be suspected of using would be at detectible levels even if the police wait for a warrant. Thus, no evidence would be lost if the police wait for a judge to independently determine whether there is probable cause to seize a defendant's urine and search it for the presence of drug metabolites. Exigent circumstances do not justify the warrantless search of a defendant's urine.
Even if the court disagrees with the above analysis, you can raise a number of alternative arguments. The first would apply if the police/court in the county you are practicing in do not use telephonic warrants. The argument here is that the state cannot create its own exigency by its own action or inaction. State v. Price, 92 Or App 669, 673 (1988). The state chose not to use telephonic warrants despite the fact that such warrants can apparently be obtained in approximately one hour. See Machuca, 231 Or App at 246 ("[Officer] Ladd testified that, in his experience, a [telephonic] warrant could be obtained in a little time as one hour[.]"). The state cannot create its own "exigency" by unilaterally deciding not to use a telephonic warrant system that has been available for decades.
Second, ignoring the illegality of the seizure of the urine, no exigency supports the warrantless search of the urine by testing it. The lawful seizure of a defendant's property does not automatically extinguish a defendant's privacy interest in its contents. See, e.g., State v. Munro, 339 Or 545, 547-52 (2005) (concluding that a search of a videotape that had been lawfully seized did not violate the defendant's privacy interest only because the original search warrant to seize and search the tape had extinguished any privacy interest that defendant had had in the tape's contents). In a drug DUII, there won't be any previous warrant that authorized the police to search the urine and therefore the defendant will have retained his privacy interest.
Moreover, the search of a defendant's urine is distinguishable from a "confirmatory chemical test[]" of a substance that the police have probable cause to believe is a controlled substance. See generally State v. Owens, 302 Or 196, 205-07 (1986). Neither urine nor the drug metabolites in urine are controlled substances, and testing urine is more intrusive than the non-search in Owens (testing whether or not the white powder in a small glass vial associated with cocaine storage was in fact cocaine.) Id. Finally, no exigency supports the warrantless search of urine because the drug metabolites in urine can last in refrigerated urine for days. Thus, a defendant retains a privacy interest in the contents of his urine and no exigency allows the state to search the urine by testing it for drug metabolites.
If the defendant refused to consent, add this:
A defendant's assertion of his right to refuse to consent to a search is inadmissible because admitting that evidence invites prejudicial inferences against a defendant and compels a defendant to testify himself. State v. Moller, 217 Or App 49, 52-54 (2007). In the DUII context, a defendant has no constitutional right to refuse to consent to a blood alcohol test only when probable cause and exigent circumstances exist. See State v. Nagel, 320 Or 24, 33 (1994) (citing State v. Milligan, 304 Or 659, 666, (1988)); see also State v. Greenough, 216 Or App 426, 431 (2007) ("[D]efendant's right to be free from unreasonable searches did not grant him the constitutional right to refuse a breath test * * * [where] the officer was faced with exigent circumstances occasioned by the dissipation of the alcohol content in defendant's blood.") Because a defendant has a right to refuse to consent to the warrantless search of his or her urine in the absence of exigent circumstances, that refusal cannot be used as evidence of the defendant's guilt.
Jonah Morningstar is an appellate attorney with the Office of Public Defense Services. The opinions expressed in this article are his alone and not the official position of OPDS.
