State v. Mazzola

804 March 5, 2015 No. 7

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Respondent on Review,

v.

DINA LOUISE MAZZOLA,

Petitioner on Review.

(CC 101198M; CA A148224; SC S062126)

En Banc

On review from the Court of Appeals.*

Argued and submitted October 9, 2014, at La Grande

High School, La Grande, Oregon.

Kyle Krohn, Deputy Public Defender, Salem, argued the

cause and filed the brief for petitioner on review. With him

on the brief was Peter Gartlan, Chief Defender.

Susan G. Howe, Senior Assistant Attorney General,

Salem, argued the cause and filed the brief for respondent

on review. With her on the brief were Ellen F. Rosenblum,

Attorney General, and Anna M. Joyce, Solicitor General.

BREWER, J.

The decision of the Court of Appeals and the judgment of

the circuit court are affirmed.

Defendant moved to suppress evidence obtained during field sobriety tests

conducted prior to her arrest for driving under the influence of a controlled sub-

stance. The trial court denied defendant’s motion, defendant entered a condi-

tional guilty plea and appealed, and the Court of Appeals affirmed the convic-

tion. Held: The warrantless administration of field sobriety tests was permissible

under Article I, section 9, of the Oregon Constitution where (1) defendant was

subject to arrest for driving under the influence of a controlled substance and

(2) exigent circumstances existed, in light of the state’s need—given the elements

of the DUII charge under investigation—to gather evidence of impairment close

in time to when defendant was driving, coupled with evidence that the effects of

controlled substances dissipate with the passage of time.

The decision of the Court of Appeals and the judgment of the circuit court

are affirmed.

________________

* Appeal from Josephine County Circuit Court, Pat Wolke, Judge. 260 Or

App 378, 317 P3d 360 (2013).

Cite as 356 Or 804 (2015) 805

BREWER, J.

A police officer stopped defendant for two traffic vio-

lations; in the course of the stop, the officer observed signs

of intoxication and developed probable cause to arrest defen-

dant for driving under the influence of one or more controlled

substances. The officer then asked defendant to perform

several field sobriety tests (FSTs). After performing them,

defendant was arrested for controlled-substance DUII. ORS

813.010(1)(b).1 Before trial, defendant moved to suppress

the results of certain of the FSTs. The trial court denied

that motion, and, on defendant’s appeal from her ensuing

conviction, the Court of Appeals affirmed. State v. Mazzola,

260 Or App 378, 317 P3d 360 (2013). The dispositive issue

on review is whether, in denying defendant’s motion to sup-

press, the trial court erred in concluding that exigent cir-

cumstances had existed that—when coupled with probable

cause to arrest defendant for driving under the influence of

a controlled substance—justified the warrantless adminis-

tration of the FSTs under Article I, section 9, of the Oregon

Constitution. See State v. Nagel, 320 Or 24, 30-33, 880 P2d

451 (1994) (FSTs are searches for which a warrant generally

is required under Article I, section 9; an exception to the

warrant requirement is “a search conducted with probable

cause and under exigent circumstances”).2 For the reasons

explained below, we affirm the ruling of the trial court and

the decision of the Court of Appeals.

FACTUAL BACKGROUND AND

PROCEDURAL HISTORY

The pertinent facts are undisputed. Grants Pass

police officer Lohrfink observed defendant’s car turn and

1

ORS 813.010(1) defines the crime of DUII and provides:

“(1)  A person commits the offense of driving while under the influence of

intoxicants if the person drives a vehicle while the person:

“(a)  Has 0.08 percent or more by weight of alcohol in the blood of the per-

son as shown by chemical analysis of the breath or blood of the person made

under ORS 813.100, 813.140 or 813.150;

“(b)  Is under the influence of intoxicating liquor, a controlled substance

or an inhalant; or

“(c)  Is under the influence of any combination of intoxicating liquor, an

inhalant and a controlled substance.”

2

As discussed below, defendant does not assert that the officer lacked prob-

able cause to arrest her for driving under the influence of a controlled substance

before he asked defendant to perform the FSTs.

806 State v. Mazzola

make a lane change without proper signaling. Lohrfink

stopped defendant, approached her car, and asked for her

driver’s license and other paperwork. He noticed that defen-

dant’s speech was slurred, her eyes were glassy, her eyelids

were droopy, and she was sweating. Defendant also had dif-

ficulty retrieving her driver’s license from her wallet and

fumbled her paperwork; she seemed to have difficulty under-

standing the officer’s questions and made slow, methodical

movements. Lohrfink did not detect any odor of alcohol.

Defendant handed a California identification card

to Lohrfink. He asked her again for her driver’s license,

and she appeared confused, apparently thinking that she

already had given it to him. Defendant then clarified that she

was in the process of obtaining an Oregon driver’s license.

Lohrfink asked her about her slurred speech, and she ini-

tially denied—but later acknowledged—that her speech

was slurred. Lohrfink asked defendant where she lived in

California; she initially was uncertain and later said that

she had just moved to Oregon.

After conducting that preliminary investigation,

Lohrfink believed that he had probable cause to arrest

defendant for driving under the influence of a controlled

substance, but he did not know which drugs she might have

taken. Lohrfink had two-and-a-half years’ experience as a

police officer and 15 years of experience as a paramedic; he

had received training “about signs to look for” for drivers who

are impaired by alcohol and controlled substances. Although

Lohrfink was not trained as a Drug Recognition Expert

(DRE), he was trained in the administration of FSTs. His

paramedic training included “college level pharmacology

courses, anatomy and physiology,” and he had taught those

courses to other paramedic students. Based on that train-

ing and experience, and his common knowledge, he knew

the “basic” facts that “over time the body filters drugs and

they dissipate in one’s body,” that different drugs dissipate

at different rates, and that the effects of drugs wear off over

time. Lohrfink also knew that controlled substances differ

from alcohol in that drug metabolites remain in the body

longer than alcohol and can be detected in a later urine test.

However, he did not know “the specific science of that.”

Cite as 356 Or 804 (2015) 807

After concluding that he had probable cause to

arrest defendant, Lohrfink asked, “[A]re you willing to step

out so I can check your eyes and make sure you’re okay to

drive?”3 Defendant said, “Okay.” Lohrfink then asked defen-

dant if she took any medications, and she said that she had

a prescription for sleeping pills and also had taken Soma.4

Lohrfink then administered the horizontal gaze nystag-

mus (HGN) test,5 and he observed no “clues of impairment.”

Lohrfink was not surprised by the HGN test result, because

that test does not detect the presence of certain medica-

tions and controlled substances. After administering the

HGN test, Lohrfink said, “We’re going to do a few more

tests, okay?” Defendant responded, “Okay.” She believed

that Lohrfink was telling her what to do; when she agreed

to perform the additional tests, she was “just doing what

he told me to do.” Lohrfink administered three additional

FSTs: the walk-and-turn test, the one-leg-stand test, and

the finger-to-nose test.6 After administering those tests,

Lohrfink arrested defendant for driving under the influence

of a controlled substance.

Defendant filed a pretrial motion to suppress evi-

dence obtained as a result of the traffic stop and DUII inves-

tigation. In her written motion and at the suppression hear-

ing, defendant acknowledged that she had consented to the

HGN test but asserted (1) that she did not actually consent

to the three additional FSTs, and (2) that Officer Lohrfink

3

When asked whether it would have been a hardship to obtain a search

warrant before conducting the field sobriety tests, Lohrfink stated, “We don’t do

search warrants in this county.” Lohrfink later clarified that he did not seek a

search warrant before administering the FSTs “because we go based on DMV

implied consent.” See 356 Or at 820 n 15.

4

“Soma,” or Carisoprodol, is a central nervous system (CNS) depressant.

State v. McFarland, 221 Or App 567, 571 n 3, 191 P3d 754 (2008).

5

Officers look for nystagmus, that is, involuntary movement of the eye. There

are three possible clues for impairment in each eye or a total of six possible clues.

Four of six possible “clues” must be present for an individual to fail the HGN test.

See OAR 257-025-0020 (describing FSTs and procedure); see also State v. O’Key,

321 Or 285, 294-95, 899 P2d 663 (1995) (describing nystagmus and HGN test).

6

Lohrfink did not testify at the suppression hearing regarding the admin-

istration or results of the three additional FSTs. The FSTs that he administered

were identified in defendant’s written motion to suppress. See Mazzola, 260 Or

App at 380. Because this case involves a conditional guilty plea, as opposed to the

review of an evidentiary trial record, the court need not determine whether the

admission of the FST results would have been harmful.

808 State v. Mazzola

had lacked probable cause to believe that she had been driv-

ing under the influence of a controlled substance. At the

close of the suppression hearing, defendant further argued

that, even if there had been probable cause, the state had to

prove that exigent circumstances existed, and it had failed

to do so.

The trial court found that defendant had not actu-

ally consented to the administration of the three additional

FSTs. However, the court concluded that Lohrfink had had

probable cause to arrest defendant for driving under the

influence of a controlled substance and that exigent circum-

stances existed. Accordingly, the court denied the motion to

suppress.

Defendant entered a conditional guilty plea and

appealed, challenging the denial of her motion to suppress.

Mazzola, 260 Or App at 381. On appeal, defendant did not

contest the trial court’s determination that probable cause

existed; rather, she focused solely on whether exigent cir-

cumstances supported the warrantless search. For its part,

the state did not argue that defendant actually consented to

the tests; instead, it, too, focused on the exigency issue. As

noted, the Court of Appeals affirmed the trial court’s rul-

ing, holding that, in light of this court’s decisions in Nagel

and State v. Machuca, 347 Or 644, 227 P3d 729 (2010), “the

evanescent nature of controlled-substance intoxication”

created an exigency that—together with probable cause—

permitted the warrantless administration of the challenged

FSTs. Mazzola, 260 Or App at 382-83. In so concluding,

the court emphasized that “the issue is whether the rate of

dissipation of defendant’s physical, observable symptoms of

intoxication—that is, the type of evidence collected pursu-

ant to a FST—created an exigency.” Id. at 382 n 2 (emphasis

in original).

On review, defendant argues that this court should

not recognize an exigency that ordinarily authorizes the

warrantless administration of FSTs where a police officer

has probable cause to believe that a motorist is under the

influence of a controlled substance. Defendant asserts that,

unlike alcohol, the rates at which the effects of various con-

trolled substances dissipate within the human body are

Cite as 356 Or 804 (2015) 809

not matters of common knowledge. Defendant notes that,

despite Lohrfink’s training and experience as a police offi-

cer and paramedic, Lohrfink knew only the “basic” fact that

the effects of drugs dissipate over time. Defendant asserts

that the chemical dissipation rates of controlled substances

can vary, depending both on the kind of drug and the kind

of test involved, and that drug metabolites can remain in a

person’s system long after the effects of the drug have dissi-

pated. Because the record contains no evidence of the dissi-

pation rates for controlled substances that might have been

in her body, defendant contends that the trial court could

only speculate as to whether any significant loss of evidence

might have occurred if Lohrfink had taken the time to seek

a warrant to compel the administration of the challenged

FSTs.7

The state responds that exigent circumstances gen-

erally are present when an officer reasonably believes that

a motorist is under the influence of a controlled substance.

According to the state, it is well known that the effects of

drugs dissipate from a person’s body, even if the particular

rates of dissipation are not known or knowable at the road-

side scene of a DUII arrest. Given the complexity of their

metabolisms and the fact that controlled substances affect

people in unpredictable ways, the state asserts that it is not

possible to accurately determine how long a suspect would

continue to be under the influence of a controlled substance.

And, the state posits, when multiple drugs are involved, the

reaction within a particular person’s system is even more

unpredictable. In addition, the state notes, there is no pre-

sumptive level of impairment that can be ascertained from

7

In addition, defendant argues that, although common sense might suggest

that FSTs detect impaired driving resulting from the ingestion of controlled sub-

stances, that is not so. According to defendant, FSTs are specifically designed to

detect blood alcohol content, not the presence of controlled substances or general

signs of impairment, and they have been validated only for that purpose.

That argument, however, is unpreserved. Defendant did not argue before

the trial court that the challenged FSTs were not scientifically reliable indicia

of impairment due to controlled substance intoxication. Had defendant raised

that argument before the trial court, the state would have had an opportunity to

make a different factual and legal record. See, e.g., Marcelline Burns and Teresa

Dioquino, A Florida Validation Study of the Standardized Field Test (S.F.S.T.)

Battery, at Intro (1998) (asserting that “SFSTs provide important evidence of

drug impairment”). Because the argument is unpreserved, we do not address it.

810 State v. Mazzola

the presence of drugs in a suspect’s blood stream or urine.

Thus, the state reasons, the most probative evidence of drug

impairment often is nonchemical evidence gathered close in

time to the suspect’s actual driving. The state asserts that

requiring officers to weigh the length of time required to

obtain a search warrant against the challenge of determin-

ing the dissipation rate of the effects of a suspected drug or

combination of intoxicants will result in the loss of valuable

evidence of impaired driving.

The Court of Appeals essentially agreed with the

state’s reasoning. Although the state did not present evi-

dence about how long it would have taken for the officer

in this case to obtain a warrant, the Court of Appeals con-

cluded:

“In Machuca, the Supreme Court observed that, as a gen-

eral matter, ‘the undisputed evanescent nature of alcohol

in the blood’ provides ‘a sufficient basis to conclude that a

warrant could not have been obtained without sacrificing

that evidence.’ 347 Or at 656 * * *. We see no reason why

that rule would not also apply to cases, like this one, involv-

ing FSTs, which are designed to enable officers to detect

current impairment.”

Mazzola, 260 Or App at 382-83. Defendant challenges that

conclusion. In light of technological advances that have

expedited a police officer’s ability to seek a search warrant,

and because the officer in this case did not consider (nor did

the state establish) the dissipation rate of any controlled

substances that she had ingested, defendant argues that no

exigency existed that excused compliance with the warrant

requirement of Article I, section 9.

ANALYSIS

Article I, section 9, guarantees “the right of the peo-

ple to be secure in their persons, houses, papers, and effects,

against unreasonable search, or seizure.” Under that sec-

tion, a search conducted without a warrant is deemed unrea-

sonable unless it “fall[s] within one of the few specifically

established and carefully delineated exceptions to the war-

rant requirement.” State v. Bridewell, 306 Or 231, 235, 759

P2d 1054 (1988). One exception—the exigent circumstances

exception—allows the police to conduct a search without a

Cite as 356 Or 804 (2015) 811

warrant if the search is both supported by probable cause

and conducted under exigent circumstances. State v. Snow,

337 Or 219, 223, 94 P3d 872 (2004). Exigent circumstances

include, among other things, situations in which immediate

action is necessary to prevent the disappearance, dissipa-

tion, or other loss of evidence. State v. Stevens, 311 Or 119,

126, 806 P2d 92 (1991).

Where the exigent circumstances exception is at

issue, this court has observed that, “[i]n this modern day

of electronics and computers,” a day will come when the

warrant requirement can be fulfilled expeditiously. State v.

Brown, 301 Or 268, 278 n 6, 721 P2d 1357 (1986); see also

State v. Kurokawa-Lasciak, 351 Or 179, 188, 263 P3d 336

(2011) (discussing desirability of “a neutral magistrate’s

evaluation of probable cause” and anticipating “advances

in technology permit[ting] quick and efficient electronic

issuance of warrants”). In many circumstances, obtain-

ing a warrant no longer entails undue delay or prevents

timely police action. See Riley v. California, ___ US ___, ___,

134 S Ct 2473, 2493, 189 L Ed 2d 430 (2014) (discussing

“[r]ecent technological advances” that have “made the pro-

cess of obtaining a warrant itself more efficient”); Missouri

v. McNeely, ___ US ___, ___, 133 S Ct 1552, 1573, 185 L Ed

2d 696 (2013) (Roberts, C.J., concurring in part and dissent-

ing in part) (describing jurisdiction where warrants may be

obtained electronically in as little as 15 minutes). We there-

fore are hesitant to broadly apply the exigent circumstances

exception without a firm constitutional basis for doing so.

See State v. Fessenden / Dicke, 355 Or 759, 771, 333 P3d 278

(2014) (so stating).

Although not argued as a basis for the administra-

tion of the tests in this case, a related exception to the war-

rant requirement under Article I, section 9, is the “search

incident to arrest” doctrine. A warrantless search incident

to arrest can be made for any of three purposes: (1) to pro-

tect a police officer’s safety; (2) to prevent the destruction of

evidence; or (3) to discover evidence of the crime of arrest.

State v. Hoskinson, 320 Or 83, 86, 879 P2d 180 (1994). To

pass constitutional muster, such a search must relate to a

crime that there is probable cause to believe the arrestee

812 State v. Mazzola

has committed, and it must be reasonable in scope, time,

and intensity. State v. Owens, 302 Or 196, 204, 729 P2d 524

(1986); State v. Caraher, 293 Or 741, 758-59, 653 P2d 942

(1982). The doctrine exists because “[a]n arrest * * * creates

a type of exigency justifying a warrantless search of the

arrested person.” State v. Milligan, 304 Or 659, 669, 748 P2d

130 (1988).8 With the foregoing principles in mind, we turn

to the statutory provisions and case law that are pertinent

to our analysis.

Our point of departure is the DUII statute, ORS

813.010(1), which applies to driving under the influence of

alcohol, controlled substances, inhalants, or a combination

of any of those intoxicants. As this court explained in State

v. Eumana-Moranchel, 352 Or 1, 7-8, 277 P3d 549 (2012):

“The state can establish that the defendant’s BAC was .08

percent or more, ORS 813.010(1)(a), regardless of observ-

able symptoms, or the state can prove that the person was

‘under the influence of intoxicating liquor, a controlled

substance, or an inhalant,’ that is, that the defendant was

adversely affected by intoxicants to a perceptible degree,

ORS 813.010(1)(b), (c). See [State v.] King, 316 Or [437,]

446[, 852 P2d 190 (1993)] (‘The legislature did intend that

a person could commit [the offense of DUII] by driving

with the specified BAC but with no perceptible impairment

or by driving with a legally permissible or unknown BAC

but while nonetheless perceptibly impaired[.]’); [State v.]

Clark, 286 Or [33,] 39[, 593 P2d 123 (1979)] (in making

it an offense to drive with a certain BAC, ‘the legislature

apparently assumed, based on scientific studies and medi-

cal knowledge, that the physical and mental condition of a

driver with such a level of blood alcohol is impaired to such

a degree as to make it unsafe for him to drive a motor vehi-

cle, regardless of observable physical symptoms’).”

Thus, the state must prove (1) in the case of alcohol intox-

ication, that the driver had a proscribed BAC level, ORS

813.010(1)(a); or (2) alternatively in alcohol cases, and

8

A search incident to arrest may precede the arrest, where, as here, the

defendant was subject to restraint when the search occurred. State v. Heintz, 286

Or 239, 248, 594 P2d 385 (1979); State v. Groda, 285 Or 321, 325, 591 P2d 1354

(1979). However, “probable cause for an arrest [must] exist[ ] independently of

evidence brought to light by the search.” State v. Elk, 249 Or 614, 621-22, 439 P2d

1011 (1968).

Cite as 356 Or 804 (2015) 813

necessarily in controlled substance, inhalant, and combined

intoxication cases, that the driver was impaired to a percep-

tible degree while driving, ORS 813.010(1)(b), (c).9 Implicit

in ORS 813.010(1)(a) is the premise that, in an alcohol-based

prosecution, blood alcohol content is probative of whether

a defendant was impaired while driving. By contrast, the

DUII statute does not provide that chemical evidence of

the presence of drugs in a defendant’s system can establish

that the defendant was so impaired.10 Thus, in a prosecution

under ORS 813.010(1)(b), evidence that the defendant was

impaired while driving typically comes in other forms. With

that basic framework in mind, we turn to the case law on

which the parties rely.

The parties primarily focus on two prior decisions

in which this court applied the exigency exception, both

of which involved alcohol intoxication. In Nagel, an offi-

cer administered FSTs to the defendant and arrested him

for an alcohol-based DUII after completing the tests. 320

Or at 26-27. The trial court denied the defendant’s motion

to suppress evidence derived from the FSTs. Id. at 27-28.

On review, this court concluded that the administration of

FSTs was a search under both Article I, section 9, of the

90

Of course, to convict a defendant of controlled substance-based DUII under

ORS 813.010(1)(b), the state also must prove that the impairment was due to the

influence of a controlled substance. Although that element is not our main point of

focus here, we note that such proof often is adduced through post-arrest chemical

urinalysis showing the presence of a controlled substance in the defendant’s body.

See, e.g., State v. Fong, 226 Or App 493, 499, 204 P3d 146 (2009) (referring to uri-

nalysis evidence adduced to prove that impaired driving was due to the influence

of a controlled substance). As another way to prove that a motorist is impaired

due to controlled substance intoxication, some courts, including the Court of

Appeals, have approved the admission as scientific evidence of the results of a

twelve-step drug recognition protocol that includes, among other features, the

administration of a BAC test, various FSTs, and, ultimately for validation pur-

poses, a chemical urinalysis test for the presence of controlled substances. See

State v. Sampson, 167 Or App 489, 493-96, 6 P3d 543, rev den, 331 Or 361 (2000)

(citing NHTSA, “Drug Evaluation and Classification Training Student Manual,”

at IV-3 to IV-22 (1993)); see also OAR 257-025-0012(3) (noting the existence of

the same).

10

That difference in the statutory treatment of alcohol-based and controlled

substance-based DUIIs is consistent with the premise that “[c]hemical tests of

blood or urine usually disclose only whether or not a particular drug was recently

used. The chemical test cannot be relied upon to determine whether the drug

was psychoactive in the subject at that time.” NHTSA, “Drug Evaluation and

Classification Training: ‘The Drug Recognition Expert School’ Student Manual,

at III-4 (Jan 2011 ed) (emphasis omitted).

814 State v. Mazzola

Oregon Constitution and the Fourth Amendment to the

United States Constitution, but that the warrantless search

was reasonable based on the exigent circumstances excep-

tion. Id. at 28-37. This court noted that “[b]lood-alcohol

content is a transitory condition, the evidence of which will

dissipate in a relatively short time.” Id. at 33. Because evi-

dence of impairment due to alcohol intoxication that could

be obtained from FSTs may be sacrificed during the time

required to obtain a search warrant, the court concluded

that exigent circumstances justified the warrantless admin-

istration of FSTs under Article I, section 9. Id.

In Machuca, the defendant was involved in a car

accident and taken to a hospital emergency room. 347 Or

at 646. A police officer responded. There was a strong odor

of alcohol in the room. The officer arrested the defendant,

read an “implied consent rights and consequences” form,

and asked if the defendant would “like to” take a blood test.

Id. at 647. The defendant agreed, and the officer summoned

a nurse who extracted a sample of the defendant’s blood. Id.

Before his DUII trial, the defendant moved to sup-

press the results of the blood test under Article I, section 9.

Id. The state argued that the dissipating amount of alco-

hol in the defendant’s bloodstream constituted an exigency

that, when coupled with probable cause to believe that the

defendant had driven while intoxicated, excused the war-

rant requirement. Id. This court upheld the trial court’s

denial of the suppression motion. Id. at 659. As pertinent

here, the court reviewed its prior decisions involving war-

rantless blood draws for the purpose of investigating DUIIs,

including State v. Moylett, 313 Or 540, 836 P2d 1329 (1992).

In Moylett, evidence showed that “[t]he loss of alco-

hol evidence which creates the exigency occurs because of

the biological fact that the human body metabolizes and

expels alcohol.” 313 Or at 550. This court had held that the

mere fact that alcohol was dissipating was insufficient to

establish an exigency. Instead, the court had concluded that

the state was further required to prove that a warrant could

not have been expeditiously obtained to authorize the war-

rantless extraction. Id. at 551. Specifically, the court had

stated:

Cite as 356 Or 804 (2015) 815

“The exigency created by the dissipating evidence of blood

alcohol, however, did not make the blood sample seizures

per se reasonable under Article I, section 9. The state was

still required to prove, in order to justify the warrant-

less extraction of defendant’s blood, that it could not have

obtained a search warrant without sacrificing the evi-

dence and that the blood sample that it obtained had been

extracted promptly.”

Moylett, 313 Or at 550-51 (internal quotations omitted).

This court, in Machuca, expressly disavowed that

portion of Moylett:

“After examining the cases set out above, we conclude that

the exigent circumstances analysis set out in Moylett, which

required the state to prove ‘that it could not have obtained

a search warrant without sacrificing the evidence,’ unnec-

essarily deviated from this court’s established case law.

Until Moylett, the court’s focus had been on the exigency

created by blood alcohol dissipation. Moylett, however,

shifted that focus away from the blood alcohol exigency

itself and onto the speed with which a warrant presumably

could have issued in a particular case. In our view, that

shift was unsupported by the cases that preceded it, and

we disavow it now.”

Machuca, 347 Or at 656. With that treatment of the case

law, the court in Machuca announced the following rule in

the warrantless blood-draw context:

“It may be true, phenomenologically, that, among such

cases, there will be instances in which a warrant could have

been both obtained and executed in a timely fashion. The

mere possibility, however, that such situations may occur

from time to time does not justify ignoring the inescapable

fact that, in every such case, evidence is disappearing and

minutes count. We therefore declare that, for purposes of

the Oregon Constitution, the evanescent nature of a sus-

pect’s blood alcohol content is an exigent circumstance that

will ordinarily permit a warrantless blood draw of the kind

taken here. We do so, however, understanding that partic-

ular facts may show, in the rare case, that a warrant could

have been obtained and executed significantly faster than

the actual process otherwise used under the circumstances.

816 State v. Mazzola

We anticipate that only in those rare cases will a warrant-

less blood draw be unconstitutional.”

Id. at 656-57 (emphasis omitted).11

As discussed, Nagel and Machuca both involved

suspected alcohol intoxication. In particular, in assessing

exigency, Nagel weighed the amount of time necessary to

obtain a warrant against the known dissipation rate of alco-

hol in a person’s bloodstream. That comparison is less apt

where, as here, defendant’s prosecution was not based on

ORS 813.010(1)(a). That is, unlike the alcohol-based prose-

cutions in Nagel and Machuca, the claimed exigency in this

case did not involve obtaining evidence of impairment in

11

Defendant does not rely on the Fourth Amendment in this case. However,

we note that, in McNeely, the United States Supreme Court addressed “whether

the natural metabolization of alcohol in the bloodstream presents a per se exi-

gency that justifies an exception to the Fourth Amendment’s warrant require-

ment for nonconsensual blood testing in all drunk-driving cases.” McNeely, ___

US at ___, 133 S Ct at 1556. The court concluded:

“In those drunk-driving investigations where police officers can reasonably

obtain a warrant before a blood sample can be drawn without significantly

undermining the efficacy of the search, the Fourth Amendment mandates

that they do so.”

Id. at ___, 133 S Ct at 1561. In reaching that conclusion, the Court recognized

that advances in technology and procedure now allow officers—often coordinat-

ing directly with prosecutors and the court—to obtain warrants in an expedited

fashion. Id. at ___, 133 S Ct at 1561-62. Moreover, circumstances may indicate

that “an officer can take steps to secure a warrant while the suspect is being

transported.” Id. at ___, 133 S Ct at 1561. “In such a circumstance, there would

be no plausible justification for an exception to the warrant requirement.” Id.

As the state points out, McNeely addressed the narrow issue of whether the

natural dissipation of alcohol in the body creates a per se exigent circumstance

that justifies a nonconsensual and warrantless blood draw from a driver after

transport from the scene of arrest. See id. at ___, 133 S Ct at 1558; cf. State v.

Moore, 354 Or 493, 497 n 5, 318 P3d 1133 (2013), adh’d to as modified on recons,

354 Or 835, 322 P3d 486 (2014) (“In our view, the Court’s rejection [in McNeely]

of a per se exigency rule is not inconsistent with our statement in [Machuca] that,

while exigent circumstances are ‘ordinarily’ present in a case involving alcohol,

that may not be true, depending on the facts of a particular case.”). In McNeely,

the Court did not address the application of the exigency exception in the context

of the warrantless administration of FSTs at the scene of a DUII arrest. We also

note that, since deciding McNeely, the Court has taken a more lenient view of the

demands of the warrant requirement under the Fourth Amendment where less

intrusive searches than blood draws are involved. See, e.g., Maryland v. King, ___

US ___, ___, 133 S Ct 1958, 1968-69, 186 L Ed 2d 1 (2013) (DNA buccal swab

procedure conducted at a police station was “a far more gentle process than a

venipuncture to draw blood,” and did not require a warrant because it was a rea-

sonable search). In short, McNeely is not controlling here, and defendant does not

contend otherwise.

Cite as 356 Or 804 (2015) 817

the form of a quantitative chemical analysis of defendant’s

bodily fluids; rather, as elaborated below, the claimed exi-

gency involved securing observational evidence of a motor-

ist’s physical impairment due to the use of controlled sub-

stances. As an additional distinction, Machuca involved a

compelled blood draw at a medical facility rather than the

administration of FSTs at the roadside scene of a DUII

investigation. Different considerations apply to the exigency

analysis where the challenged search occurred relatively

late in a DUII investigation and more time was available to

secure a warrant. Accordingly, while instructive, Nagel and

Machuca do not wholly control our assessment of exigency

in the context of the roadside administration of FSTs in a

controlled substance intoxication investigation.12

Which brings us to defendant’s challenge on review.

According to defendant, “unlike alcohol, the dissipation

of controlled substances from the body is neither well-

established nor common knowledge.” Defendant asserts

that, although scientific studies have established a correla-

tion between the amount of alcohol in a person’s system and

the extent of the person’s impairment, the same is not true

for controlled substances. Defendant notes that some drugs

have a quicker onset of effect than others, some have a more

durable effect than others, and the toxicological evidence of

some remains in the system longer than others, sometimes

even long after the impairing effects have subsided.13 It fol-

lows, defendant concludes, that the trial court could only

speculate as to whether any loss of evidence might have

occurred if Lohrfink had sought a search warrant for evi-

dence of controlled substances.

12

In Moore, also a controlled substance intoxication case, this court briefly

noted that the record contained “no evidence of the dissipation rates for any con-

trolled substances that might have been found in defendant’s system.” 354 Or at

497 n 5. However, our decision in that case involved the consent exception to the

warrant requirement, not the exigency exception. Id. at 495-97. Moore does not

meaningfully inform our analysis here.

13

The state does not dispute—to the contrary, it strongly agrees—that those

variations and uncertainties exist. In fact, both parties have provided the court

with extensive references to scientific studies that generally reach similar con-

clusions. However, those materials were not presented to the trial court at the

suppression hearing. To the extent that they include adjudicative facts, we have

not been asked to take judicial notice of those facts, see OEC 201(f) (providing for

judicial notice at trial or on appeal), nor, in view of our analysis, is it necessary

for us to do so sua sponte.

818 State v. Mazzola

To properly assess defendant’s argument, it is help-

ful to consider the purpose for which FSTs are relevant in

DUII prosecutions under ORS 813.010(1)(b). The rationale

behind the admission in DUII cases of the results of FSTs

such as the ones challenged here aptly has been described

as follows:

“Psychomotor [field sobriety tests] test balance and divided

attention, or the ability to perform multiple tasks simulta-

neously. While balancing is not necessarily a factor in driv-

ing, the lack of balance is an indicator that there may be

other problems. Poor divided attention skills relate directly

to a driver’s exercise of judgment and ability to respond to

the numerous stimuli presented during driving. The tests

involving coordination (including the walk-and-turn and

the one-leg-stand) are probative of the ability to drive, as

they examine control over the subject’s own movements.”

United States v. Horn, 185 F Supp 2d 530, 558 (D Md 2002).

That is, the challenged FSTs test for, and provide evidence

of, impaired driving. Consistently with that rationale, ORS

801.272 defines “field sobriety test” as:

“[A] physical or mental test, approved by the Department of

State Police by rule after consultation with the Department

of Public Safety Standards and Training, that enables a

police officer or trier of fact to screen for or detect proba-

ble impairment from intoxicating liquor, a controlled sub-

stance, an inhalant or any combination of intoxicating

liquor, an inhalant and a controlled substance.”

(Emphasis added). Thus, the legislature has defined “field

sobriety test” as a means of detecting impairment.14

As discussed, ORS 813.010(1)(b) sets out an alterna-

tive way to prove an alcohol-based DUII, but it provides the

only way to prove a controlled substance DUII. See Eumana-

Moranchel, 352 Or at 7-8. An element of ORS 813.010(1)(b)

is driving while impaired; to prove that element, the most

probative evidence generally will consist of observations

made while—or close in time after—the defendant was

14

The Department of State Police has adopted administrative rules pursu-

ant to ORS 801.272 that set out the FSTs, OAR 257-025-0000 to OAR 257-025-

0025. OAR 257-025-0012, which sets out approved field sobriety tests (including

the tests that defendant challenges in this case), provides that those tests are

“ ‘field sobriety tests’ as that phrase is defined by ORS 801.272.”

Cite as 356 Or 804 (2015) 819

driving. See id. at 7 (“the focus of [ORS 813.010(1)(b)] is on

the act of driving, and doing so while impaired”). Thus, FST

evidence—like any other observed evidence of impairment—

that is gathered closest in time to the defendant’s act of driv-

ing, will be most probative.

To further assess defendant’s argument, we also

consider the implications of the unchallenged conclusion

that Officer Lohrfink already had probable cause to arrest

defendant for the crime of driving under the influence of

a controlled substance when he asked her to perform the

FSTs at issue here. In Heintz, this court held that, if proba-

ble cause to make a DUII arrest exists, if the search at issue

involves a limited intrusion (a blood draw), and if evidence

of the crime under investigation is evanescent, then no war-

rant is required to justify the search as one incident to the

defendant’s arrest. Heintz, 286 Or at 248-49. In Milligan,

relying in part on Heintz, this court held that, where prob-

able cause to arrest the defendant existed, a warrantless

blood draw at a hospital did not violate Article I, section 9.

Milligan, 304 Or at 665. In the circumstances there, the

court held that the defendant “was a vessel containing evi-

dence of a crime he had committed—evidence that was dis-

sipating with every breath he took.” Id. at 665. The court

further held that the exigency requirement did not demand

evidence showing the amount of time that would have been

lost in obtaining a warrant. Id. According to the court,

“this legal conclusion asks too much of the evidence. From

the testimony the trial court accepted, exigent circum-

stances existed justifying the initial, warrantless extraction

because alcohol was dissipating at some significant rate.”

Id. at 666 n 5 (emphasis omitted). In Machuca, which, like

this case, involved the application of the exigent circum-

stances exception, this court drew on both Milligan and

Heintz to support its conclusion that an exigency justified

the warrantless blood draw in that case. Machuca, 347 Or

at 652-55.

As pertinent here, Mulligan, Heintz, and Machuca

teach us that, where a warrantless search for evidence of the

crime of DUII is supported by probable cause to arrest the

820 State v. Mazzola

defendant, the issue of exigency should be assessed in light

of the reasonableness of the search in time, scope, and inten-

sity. Here, limited testing designed to detect evidence of cur-

rent impairment was performed on a person who already

had been validly stopped and also was subject to arrest for

DUII. The tests at issue were limited in scope and inten-

sity; they did not intrude into defendant’s body; rather, they

assessed her coordination, balance, and motor skills. Those

tests constituted probative evidence of an element—current

impairment—of the crime of defendant’s arrest, they were

administered soon after defendant had been observed driv-

ing, and they immediately preceded her arrest. With respect

to exigency, there also was evidence that “over time the body

filters drugs and they dissipate in one’s body,” that various

drugs can dissipate at different rates, and that the effects of

drugs wear off over time. Again, the challenged FSTs assess

a motorist’s impairment at the time of driving, not at a later

time. See Eumana-Moranchel, 352 Or at 7. In light of the

limited scope and intensity of those tests, and their prox-

imity in time to defendant’s arrest, the described evidence

established a sufficient exigency to justify the warrantless

administration of the FSTs in this case.

CONCLUSION

We conclude that, because defendant was subject

to arrest for DUII, and because the administration of the

challenged FSTs was reasonable in time, scope, and inten-

sity, the evidence of exigent circumstances in this case was

sufficient to make the warrantless administration of those

tests constitutionally permissible.15 Accordingly, we affirm

15

As noted, Officer Lohrfink testified that he relied on “implied consent” in

this and other DUII cases. Our holding makes it unnecessary to consider the

state’s alternative argument that defendant impliedly (as opposed to actually)

consented to the administration of the FSTs under ORS 813.135. That statute

provides:

“Any person who operates a vehicle upon premises open to the public or the

highways of the state shall be deemed to have given consent to submit to field

sobriety tests upon the request of a police officer for the purpose of determin-

ing if the person is under the influence of intoxicants if the police officer rea-

sonably suspects that the person has committed the offense of driving while

under the influence of intoxicants in violation of ORS 813.010 or a municipal

ordinance. Before the tests are administered, the person requested to take

the tests shall be informed of the consequences of refusing to take or failing

to submit to the tests under ORS 813.136.”

Cite as 356 Or 804 (2015) 821

the trial court’s denial of defendant’s motion to suppress and

the Court of Appeals decision affirming that ruling.16

The decision of the Court of Appeals and the judg-

ment of the circuit court are affirmed.

ORS 813.136, in turn, provides:

“If a person refuses or fails to submit to field sobriety tests as required by

ORS 813.135, evidence of the person’s refusal or failure to submit is admissi-

ble in any criminal or civil action or proceeding arising out of allegations that

the person was driving while under the influence of intoxicants.”

ORS 813.135 and ORS 813.136, taken together, create a limited implied

exclusionary rule that, “if the driver refuses the tests and no information con-

cerning the consequences of refusing was given, evidence of refusal is not admis-

sible.” State v. Trenary, 316 Or 172, 178, 850 P2d 356 (1993) (emphasis omitted).

The record in this case does not show that Officer Lohrfink warned defendant

of the consequences of refusing to submit to the FSTs. However, the statutes do

not provide for the exclusion of evidence if a driver takes the field sobriety tests

without being informed of the consequences because, in that instance, “the goal of

the statute—that suspected DUII drivers perform field sobriety tests—has been

achieved.” Id. Therefore, “[t]he statute is directed at drivers who refuse to take

the test, not at drivers who do take the test.” Id. at 177.

16

Our holding also makes it unnecessary to address the state’s additional

alternative argument that the warrantless administration of FSTs when an

officer has reasonable suspicion to believe a motorist has committed the crime

of driving under the influence of intoxicants constitutes a reasonable search for

purposes of Article I, section 9. In Nagel, this court expressly abstained from

deciding whether ORS 813.135—which authorizes FSTs based on reasonable sus-

picion—violates Article I, section 9. Nagel, 320 Or at 37.