By Maxine Bernstein, The Oregonian
Published:Friday, October 02, 2009, 11:00 PM
Thomas Boyd/The Oregonian
Police and prosecutors say a court of appeals ruling will make it more difficult to investigate and prosecute suspected drunken drivers.
Although a man accused of drunken driving gave his consent to have his blood drawn for testing, the Oregon Court of Appeals ruled this week that the consent was coerced and should be suppressed.
In a 6-4 decision, the appellate court found that the man’s consent was not voluntary because he agreed after a police officer read him the penalties of not complying, as required by state law.
The court also ruled that the officer, who had probable cause to believe the driver was intoxicated, could have obtained a search warrant by phone without sacrificing evidence and should have done so.
Prosecutors and police say the ruling could significantly change how police investigate drunk driving cases, requiring officers to get a search warrant before every breath test, blood draw or urine test.
“It could pose an enormous challenge to DUII prosecution,” said Josh Marquis, Clatsop County district attorney. “The whole concept of the implied consent law is that driving is a privilege, not a right.”
The ruling throws into question the constitutionality of the state’s implied consent law which holds that licensed drivers will consent to a breath, blood or urine test if arrested on an accusation of driving under the influence of intoxicants. The law says refusal to take a test could be used as evidence in court, and lead to loss of license and fines.
Defense attorneys hailed the ruling as a victory for individual rights.
“This is a huge case. I applaud the majority opinion for its devotion to the fundamentals of constitutional law,” said Oregon City lawyer John Henry Hingson III, founding member of the National College for DUII Defense Inc., a non-profit organization that helps train attorneys.
State Attorney General John Kroger will petition the Oregon Supreme Court to review the decision, said spokesman Tony Green. “Given the significant on-the-ground impact of the ruling, we are working quickly on getting our appeal together.”
The case stemmed from a 2005 arrest of Thomas Gregory Machuca after an accident on Portland’s Southwest Naito Parkway. Machuca was injured and taken to Oregon Health Sciences University Hospital.
Portland Traffic Officer Joshua Ladd, finding probable cause to believe the driver was under the influence of intoxicants, went to the hospital around 2:10 a.m.
The officer noticed a very strong smell of alcohol in his emergency room. He explained why he was there, and told Machuca he was under arrest for driving under the influence of intoxicants and reckless driving. Ladd testified the defendant understood he’d been in a wreck, knew where he was, and why. Ladd read him his Miranda rights, and the state’s implied consent law, including the consequences he could face if he refused a blood draw. Machuca consented, and a nurse drew his blood at 3:18 a.m.
Machuca pushed to suppress the evidence, but the trial court judge denied his motion. Machuca entered a conditional guilty plea, reserving the right to appeal.
The state argued that Machuca gave consent, and evidence would have been lost if the officer had to wait for a search warrant.
The appellate court’s majority opinion cited a 28-year-old Oregon Supreme Court case State v. Newton, saying that a consent to search is “coerced by the fear of adverse consequences, and is ineffective to excuse” a search warrant. The majority also ruled there was no emergency to draw the blood without a search warrant, because the officer conceded he could have obtained a warrant by phone within one hour.
“The requirement to obtain a warrant is not excused by the mere fact that alcohol dissipates in the bloodstream over time,” Appellate Judge Timothy Sercombe wrote in the majority opinion.
Oregon Public Defender Peter Gartlan, who argued the appeal on Machuca’s behalf, said the state statute is drafted to coerce consent, and violates the constitutional protection against unreasonable search or seizure.
Appellate Judge Rick T.Haselton wrote in the dissenting opinion that the 28-year-old Newton case is not binding, has never been cited and was “patently wrong.” He cited the Catch-22 impact of the majority’s ruling: if an officer follows state statute, they’re being “coercive,” but if they don’t, they’re violating state law.
Machuca, 41, has another case to fight, charged Sept. 19 in Portland with drunk driving. He pleaded not guilty Sept. 22.