Oregon Appellate Ct - Mar. 25, 2015

Latest revision as of 09:55, March 28, 2015

DUII - Exigent Circumstances to Enter a Home - State Must Show That Evidence Would Have Been Completely Lost (Not Just Diminished) - For a DUII That Means Five Hours, 20 Minutes

Where officers are considering entering a person's home based on the dissipation of drugs or alcohol in the person's blood, "the state has the burden of proving exigency by showing that critical evidence would have been lost if police had waited to obtain a search warrant." For the first time, the court decides what the standard is that the state must meet:

"We therefore conclude that, after first showing how long it would take to obtain a search warrant, the state may prove exigency by further showing that police had an objectively reasonable belief that the circumstances were such that, had they waited for that warrant, the suspect's blood would have lost all evidentiary value."

Here, officers testified that it would have taken 45 to 90 minutes to get a search warrant. When there is probable cause to believe a person was driving while intoxicated, the officers may assume the legal limit, for the purposes of this analysis. At a normal dissipation rate of .015 per hour, it would take five hours and 20 minutes to drop from .08 to .00. In this case, defendant took approximately four hours trying to escape the police. The additional 90 minutes would take the total time five hours and 30 minutes - a potentially complete dissipation of blood-alcohol. Thus, exigent circumstances existed to enter defendant's home. It's important to further note that the peculiar facts in this case could confidently lead the court to believe that the officers did not create the delay. Defendant ran from the scene and had just arrived back at the house when officers soon thereafter decided to enter. State v Ritz, 270 Or App 88 (2015)

See also State v Rice, 270 Or App 50 (2015), in which the state did not make a showing at trial that critical evidence would have been lost, other than it being a case involving driving and likely intoxication.

DUII - Scientific Evidence - Testimony That a Breath Test Within Two Hours of Driving Is Very Unlikely to Overestimate BAC

Where a qualified forensic scientist from the State Police testified to the following in a DUII case, it was admissible as scientific evidence:

1. Based on a study out of Washington, a breath test within 2 hours of a stop, generally speaking, will not overestimate the BAC at the time of the stop.

2. While there can be variation, alcohol is absorbed quickly and, based on another study, people reach 80% of their peak within the first 15 minutes after drinking.

3. Thus, estimating conservatively and ascribing all unknown factors to the defendant's benefit, a BAC of .15 two hours after the stop would mean that defendant had at least a BAC of .12 at the time of driving.

The court finds that while the testimony clearly was scientific evidence (given by a forensic expert based on studies), it was not an application of a scientific technique like retrograde extrapolation. It was really nothing more than the straightforward application of the two simple conclusions from the studies. Since the methodology of the studies was undisputed and the articles were peer-reviewed in a well-studied field, they were scientifically valid and the testimony was properly admitted. State v Lusareta, 270 Or App 102 (2015).

Stop Extension - An Unavoidable Lull Can Occur During a Lawfully Expanded Stop

When an officer developed reasonable suspicion, during a traffic stop, that defendant's vehicle was stolen, he lawfully requested consent to search while waiting for information about the vehicle. This is true even if the officer had everything he needed for the traffic stop. A traffic stop may be extended to a stop for a criminal investigation if reasonable suspicion of criminal activity arises during the initial stop. Here, defendant was pulled over for lacking license plates. The officer quickly developed reasonable suspicion of several crimes, including possession of a stolen vehicle and forgery. While waiting for dispatch to confirm, based on the VIN number, whether the car was stolen, the officer investigated the new crimes and requested consent to search defendant's vehicle. She gave consent and the officer found drugs. The expansion of the initial stop was lawful because it was based on reasonable suspicion and the expanded stop was not unlawfully extended. State v Ferguson, 270 Or App 58 (2015).

Right to Silence Does not Extend to Not Responding to Text Messages

It is not a violation of Article I, section 12, of the Oregon Constitution for a prosecutor to argue that a defendant’s decision not to respond to an accusatory text message is an admission of guilt. Here, the Defendant was accused of rape. At the direction of a detective, the complainant sent several text messages to the Defendant along the lines of “I don’t understand how this happened. We’ve been friends for along [sic] time. Why did you do that to me?” The Defendant did not respond. The prosecutor offered the text messages and testimony concerning the Defendant’s non–response to show that the Defendant’s failure to respond was an admission of guilt. Because Article I, section 12, only provides that a defendant shall not be compelled to testify against himself and there was no evidence that the Defendant was in custody or compelling circumstances when he refused to respond, the protections of Article I, section 12, do not apply. State v. Schiller-Munneman, 270 Or App 22 (2015).

Hearsay – Arguing Inferences From Not Responding to Text Messages is Not Hearsay

Introducing accusatory text messages to infer guilt from the lack of response to the messages is not hearsay because the evidence is not offered to prove the truth of the matter asserted. Here, the complainant sent several text messages to the Defendant that accusatorially and cryptically referred to the alleged rape. The Defendant did not respond. The text messages were not hearsay because they were offered only so that the prosecutor could argue inferences to the jury based on the defendant’s choice not to respond. The defense motion to exclude was properly denied. State v. Schiller-Munneman, 270 Or App 22 (2015).

Robbery – Failing to Pay Cab Fare is Not a Taking of Property

Failing to pay for a cab ride is not a taking of property for the purposes of robbery. Here, the Defendant refused to pay for a cab ride. He scuffled with the driver before fleeing without paying. Because the Defendant never deprived the cabbie of a property interest recoverable through a civil action, the Defendant never took property. State v. Bartlett, 270 Or App 37 (2015).

Miranda – Knowing and Voluntary Waiver When No Indication of Mental Health Impairment

A waiver of Miranda rights occurs when a defendant asks to speak to the investigating detective, states that he no longer wants an attorney, and does not appear to have any mental health issues at the time of waiver. Here, the Defendant stated that he did not want to talk to police and asked for a lawyer. Seven hours later a sergeant went to the cell and asked to see the Defendant’s hands to make sure that the Defendant had not destroyed any evidence. While the Defendant was showing his hands to the sergeant, he asked about his “baby girl.” In response, the sergeant stated that he had been present when a detective told the Defendant that she was dead. The Defendant asked to speak to the detective. When the detective returned the Defendant stated that he did not want an attorney, but wanted to talk to the detective. He then made several incriminatory statements. When the detective returned and reread the Defendant’s Miranda rights, the Defendant said that he understood them, but wanted to speak to the detective. Because the sergeant had only asked questions that were “normally attendant on arrest and custody,” he did not improperly reinitiate the interrogation. Rather, absent evidence of mental impairment present during the subsequent conversation with the detective, the Defendant voluntarily waived his rights and the motion to suppress was properly denied. State v. Boyd, 270 Or App 41 (2015).

TPR – Pattern of Instability Sufficient to Deprive Parental Rights

DHS may demonstrate parental unfitness sufficient for a termination of parental rights, when it establishes that a mental health disorder and drug addiction resulted in consistent drug use, violence, and neglect of the children. Here, there was sufficient evidence to deprive the father and mother of their parental rights when:

• Father’s drug counselor noted that father needed additional support.
• Father needed to develop additional coping mechanisms to deal with his addiction.
• Father was an inconsistent participant in domestic violence and parenting classes.
• Father picked up a new DV Assault 4 charge.
• Father’s counselor noted that he had unrealistic view of his own abilities to overcome problem, despite past experiences.
• Mother had a long history of a pattern “drug abuse, sobriety, and relapse.”
• Mother’s mental health disorder made future drug use highly likely.
• Mother’s pattern of drug use manifested itself again when she used marijuana just four months before the termination trial, despite the consequences.

Given the history and behavior of both mother and father, because they were unlikely to change their conduct to permit the children to be integrated into their home within a reasonable time, it was in the best interest of the children to terminate the parental rights. Dept. of human Services v. I.M.K., 270 Or App 1 (2015).