Oregon Appellate Ct - Mar. 25, 2015

Revision as of 13:03, March 26, 2015

Exigency - Entry of Home Based on Dissipating BAC - 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, does not overestimate the BAC at the time of the stop.

2. While there can be variations based on factors such as food, type of alcohol and speed of consumption, alcohol is absorbed quickly and, based on a prior 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).