State v. Hamilton

258 January 24, 2024 No. 35

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

SHAYNA LYNN HAMILTON,

Defendant-Appellant.

Jackson County Circuit Court

18CR31535; A172776

Laura A. Cromwell, Judge.

Argued and submitted June 21, 2022.

Francis C. Gieringer, Deputy Public Defender, argued

the cause for appellant. Also on the briefs was Ernest G.

Lannet, Chief Defender, Criminal Appellate Section, Office

of Public Defense Services.

Christopher A. Perdue, Assistant Attorney General,

argued the cause for respondent. Also on the brief were Ellen

F. Rosenblum, Attorney General, and Benjamin Gutman,

Solicitor General.

Before Ortega, Presiding Judge, and Powers, Judge, and

Hellman, Judge.

POWERS, J.

Convictions on Counts 1 and 3 reversed and remanded;

remanded for resentencing; otherwise affirmed.

Cite as 330 Or App 258 (2024) 259

260 State v. Hamilton

POWERS, J.

Defendant appeals from a judgment of conviction

for two counts of driving under the influence of intoxicants

(DUII), ORS 813.010 (Counts 1 and 3), and two counts of

reckless driving, ORS 811.140 (Counts 2 and 4), arising

out of two traffic stops. Among her contentions advanced

on appeal, she argues that the trial court erred by denying

her motion to suppress evidence of her refusals to perform

field sobriety tests (FSTs) during both stops. We conclude

that, under State v. Banks, 364 Or 332, 434 P3d 361 (2019),

refusals to perform FSTs—like refusals to perform breath

tests—may be admitted as evidence of guilt if the state

proves that law enforcement’s requests to perform the tests

could be understood only as a request to submit to the phys-

ical act, and not as a request that defendant provide consti-

tutionally significant consent to the tests. Here, the state

did not meet that burden, and therefore we conclude that

the trial court erred in admitting evidence of defendant’s

refusals to participate in the FSTs. We further summarily

reject all but one of defendant’s remaining assignments of

error. Accordingly, we reverse and remand.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Standard of Review

In reviewing the denial of a motion to suppress, we

accept the trial court’s factual findings that are supported

by the evidence and determine whether the court correctly

applied legal principles to those facts. State v. Brandes, 317

Or App 672, 674, 506 P3d 431 (2022). In so doing, we limit

our discussion of the facts to the record that was developed

at the pretrial hearing. Id. We begin with the undisputed

background facts for both stops, which were presented at

the hearing on defendant’s motion to suppress and included

video footage from the stopping deputies’ body cameras on

October 21, 2017, and January 6, 2018.1

1

Defendant was also charged with two counts of unlawful possession of a

controlled substance related to the January 2018 stop. The state dismissed those

charges, as well as an additional charge of DUII on a later date in January 2018.

The jury acquitted her of additional charges of DUII and reckless driving that

were based on an April 2018 encounter.

Cite as 330 Or App 258 (2024) 261

B. October 21, 2017, Incident

Around midnight on October 21, 2017, Deputy

Brown was dispatched to a report of a white Toyota Camry

that was weaving back and forth and failing to stay in its

lane. When Brown located the vehicle, he saw it cross into

the opposite lane by about four feet before quickly moving

back into its own lane. Brown initiated a traffic stop.

After the Camry pulled over, Brown approached the

vehicle, which defendant was driving. Although it was not

raining at the time, the windshield wipers were moving at

full speed, and defendant struggled to shut them off and

find the switch to roll down her window. Brown explained

to defendant that he saw her go over the double yellow line

and that he observed that she was alternately braking and

accelerating. He asked if there was a reason that she was

driving that way, and defendant responded that she was

driving home from work and was exhausted from working a

long day.

Brown told defendant that she was called in as an

impaired driver and asked if defendant was on medications

or had taken any drugs. Defendant said no. He told defen-

dant that he had “concerns about [her] ability to safely oper-

ate a vehicle” and then asked, “So what I would like to do is

I would like to administer some standardized field sobriety

tests to make sure that you’re safe to drive back to Dixie.

Okay? Is that something that you would voluntarily consent

to doing tonight?” Defendant refused. She told Brown that

she had worked a long day with no breaks and had not eaten

that day. Brown responded, “But here’s the deal, if you’re

just exhausted * * * if you consented to the field sobriety

tests and I was to administer those and you don’t show indi-

cators of impairment, * * * exhaustion is not an intoxicant

that I’m looking for. * * * And if you’re not impaired, you’re

not impaired and you’re going to be able to drive home.”

Brown and defendant continued to discuss her driving, and

Brown asked again, “So I’m going to ask you one more time.

I would like to administer some standardized field sobriety

tests to make sure that you’re good to go.” Defendant replied

that she was not willing to take any sobriety tests.

262 State v. Hamilton

Brown read defendant her Miranda rights and pro-

vided the so-called Rohrs admonishment, which is derived

from State v. Rohrs, 157 Or App 494, 499, 970 P2d 272

(1998), aff’d, 333 Or 397 (2002). Brown told defendant, “So

I’m going to read you the Rohrs admonishment. I’m going

to ask you to submit to a purely physical field sobriety test.

None of these tests I will ask you to perform will require

you to reveal your thoughts, beliefs, or state of mind.” Brown

described the horizontal gaze nystagmus test, the walk-and-

turn test, and the one-leg stand test. After each description,

he asked, “Are you willing to perform this test?” and each

time defendant refused. He asked, “Are you willing to per-

form any tests that I’m going to ask you to perform tonight?”

and defendant refused. Brown then arrested defendant.

Deputies searched defendant’s car following her

arrest and discovered a prescription bottle containing vari-

ous pills in the car. Brown testified at the suppression hear-

ing that he did not search the trunk but that he could not

remember exactly where he found the bottle. Defendant

consented to providing a breath sample and, at the police

station, consented to providing a urine sample. The breath

sample returned a 0.00 blood alcohol content (BAC), and the

urine sample tested positive for various substances includ-

ing opioids and muscle relaxers, including buprenorphine,

norbuprenorphine, carisoprodol, meprobamate, alprazolam,

alpha-Hydroxyalprazolam, and phentermine.

C. January 6, 2018, Incident

Deputy Hohl was on duty on January 5, 2018, when

shortly before midnight a white Toyota Camry was reported

to be running red lights and swerving in its lane. He located

the vehicle and observed it go across the fog line and almost

into a ditch, jerk back into its lane, and then cross over

approximately seven feet beyond the center line and into

the opposing lane of travel before jerking back into its lane

again. Hohl initiated a traffic stop.

When Hohl approached the vehicle, the windshield

wipers were on, despite it being a clear night. Defendant’s

speech was slow, and she seemed confused and disoriented.

Hohl told defendant that he stopped her because she was

Cite as 330 Or App 258 (2024) 263

going all over the road and that he saw her almost crash

four times. He asked if she had consumed any prescriptions,

marijuana, or alcohol. Defendant said that she had not and

explained that she was exhausted from working a long shift

at work and was distracted picking up her bags off the floor.

Hohl told defendant that her driving and state-

ments were concerning and then asked, “So I was wondering

if you would be willing to consent to some field sobriety tests

to make sure you are * * *.” Defendant interrupted him and

said, “Absolutely not.” Hohl reiterated how poor defendant’s

driving was and asked again if she was taking medications.

Defendant said that she was not.

At this point, Deputy Osborne, who was a certified

drug recognition expert, or DRE, had arrived at the scene

and explained to defendant that he thought that she had

“cognitive issues” that were impacting her physical move-

ments and that her speech was slow and slurred. Defendant

responded that she was tired. Osborne explained that if

it was just tiredness, they would be able to see that in the

tests, and he asked, “So what I would like to do is ask you to

volunteer to do some field sobriety tests.” Defendant refused.

Osborne explained the tests that he was asking her to per-

form, including an eye test, walking a line, and holding one

foot in the air. He asked, “With that knowledge, you’re—

you’re not willing?” Defendant again said no, reiterating

that she had not had anything to drink but was tired and

needed to go home.

Osborne then said:

“Let me read you something. Okay? I want to read this

to you. Okay?

“I am going to ask you to submit to—to purely physical

field sobriety tests. None of the tests I will ask you to per-

form will require you to reveal your thoughts, beliefs, or

state of mind.

“The tests will include the horizontal gaze nystagmus

test, the walk-and-turn test, and the one-leg stand test. So

pay attention to what I’m saying. Okay?”

He described the tests and demonstrated each of

them for her physically. He asked if she had any questions

264 State v. Hamilton

about the tests and said, “Your refusal or failure * * * to sub-

mit to these purely physical tests may be used against you

in a civil or criminal proceeding. * * * Do you understand

that?” Defendant answered that she did. Osborne stated,

“So I would really appreciate your cooperation in this.”

Defendant again refused. Osborne asked if she would “mind

doing a couple alternative tests” and described those. Still,

defendant refused.

The deputies had defendant get out of her car and

placed her under arrest. Osborne continued to question why

defendant would not perform the tests, stating, “I’m just

boggled in my mind. * * * I mean, clearly, you’re not thinking

right. I mean I just don’t understand. I mean they are volun-

tary tests and you can refuse.” Defendant refused the tests

and later was charged with DUII and reckless driving.

In a search incident to arrest, Osborne found numer-

ous pills in defendant’s purse, which he identified while

conducting the search using a particular website that was

recommended as part of his DRE training. Defendant was

read her Miranda warnings and transported to the sheriff’s

office, where she consented to a breath sample that returned

a 0.00 BAC. After defendant refused to provide a urine or

blood sample, Osborne applied for and executed a telephonic

warrant to obtain a urine sample, which came back positive

for amphetamine in addition to the same substances as the

October 2017 sample.

D. Procedural History and Arguments on Appeal

Before trial, defendant sought to suppress any

evidence of her refusal to perform FSTs for both the

October 2017 and January 2018 stops. She asserted, among

other arguments, that admitting that evidence would be

a violation of her rights under Article I, section 9, of the

Oregon Constitution and Banks. The court denied defen-

dant’s motion after determining that (1) the deputies’ read-

ing of the Rohrs admonishment on both occasions clarified

that they were asking only that defendant submit to phys-

ical tests and (2) Banks did not apply to the circumstances

of this case because of differences between the FST and

breath test implied-consent statutes. Accordingly, evidence

Cite as 330 Or App 258 (2024) 265

of defendant’s refusals to perform the FSTs was admitted at

trial, and the court instructed the jury that it could consider

defendant’s refusals as evidence of her guilt.

II. BANKS AND REQUESTS TO PERFORM FSTs

A. Arguments on Appeal and Banks

On appeal, defendant renews her Article I, section

9, argument that the rule announced in Banks regarding

requests for breath tests also applies to requests for FSTs.2

Because defendant’s argument hinges on an interpretation

of Banks, we begin our analysis with an examination of that

case.

The defendant in Banks was involved in a single-car

crash and was arrested at the scene and transported to the

police station after officers determined that he was intox-

icated. At the station, the officer explained that he would

like the defendant to open his mouth and asked, “ ‘Can I

look in your mouth,’ defendant responded, ‘No.’ ” The officer

explained that “ ‘if you don’t [open it], then I can’t help you

maybe take a breath test,’ ” and the defendant “responded

that he would not open his mouth.” Banks, 364 Or at 334

(brackets in original).

“[The officer] explained that defendant was ‘about to be

asked to submit to a breath test * * * under the implied con-

sent law,’ and [the officer] provided information on the con-

sequences for refusing or failing the test, including that his

refusal to submit to the breath test ‘may be offered against

[him].’ After reading the [rights and consequences] form,

[the officer] asked defendant, ‘[W]ill you take a breath

test?’ Defendant responded that he would not.”

Id. at 334-35 (ellipsis in original; some brackets in original).

Before trial, the defendant moved to suppress evidence of

his refusal to consent to the breath test and argued that

the admission of his refusal would violate his rights under

Article I, section 9. Id. at 335. The court denied his motion,

2

Defendant does not advance an argument based on Article I, section 12, of

the Oregon Constitution and the prohibition against compelled self-incrimination;

thus, we express no opinion on that issue and note only that there is a separate

line of cases as discussed by State v. Shevyakov, 311 Or App 82, 489 P3d 580

(2021).

266 State v. Hamilton

and the state presented the refusal as evidence of the defen-

dant’s guilt at trial. Id.

The defendant appealed his judgment of conviction,

again arguing that his refusal to take a breath test was an

invocation of his right under Article I, section 9, to refuse to

consent to a warrantless search and that his exercise of that

constitutional right may not be used as substantive evidence

of his guilt. Id. at 336. The Supreme Court agreed that a

search of one’s breath is protected under Article I, section 9,

and that that provision requires law enforcement either to

obtain a warrant or justify the search pursuant to a valid

exception to the warrant requirement before performing a

search. Id. at 337-38.

Because a defendant’s assertion of their consti-

tutional rights may not be used as substantive evidence of

their guilt, the court announced a new test to determine the

admissibility of a refusal to take a breath test. The state, as

the party seeking to introduce evidence of the refusal, has the

burden to establish its admissibility. Id. at 343. To meet that

burden, the state must demonstrate that an officer’s request

for a breath test “could reasonably be understood only as a

request to provide physical cooperation and not as a request

for constitutionally-significant consent to search.” Id.

Applying the test to the officer’s request in that case,

the court determined that the state did not meet its burden to

establish that the defendant’s refusal was admissible as evi-

dence of his guilt. Id. The officer’s question—“[W]ill you take

a breath test?”—was ambiguous. Id. That is, the defendant

could have reasonably understood the question as a request

for “consent to search, thereby establishing a warrant excep-

tion,” or as a request that the defendant “physically submit

to a test that was justified by a warrant exception.” Id.

Returning to the case before us, defendant con-

tends that the Banks rule on requests to perform breath

tests applies with equal force to requests to perform FSTs.

She argues that, consistent with Banks, because the depu-

ties’ requests for her to perform FSTs were ambiguous as to

whether the deputies were requesting physical cooperation

Cite as 330 Or App 258 (2024) 267

or constitutionally significant consent, the state failed to

carry its burden.

The state reads Banks differently. It contends that

the rule announced in Banks hinged on a statutory right to

refuse to physically cooperate with a breath test and that

there is no similar statutory right for FSTs. Specifically, the

state contends that ORS 813.100(2) (2017), amended by Or

Laws 2019, ch 475, § 1, prohibited testing a person’s breath

if the person refused to undergo the test.3 In ORS 813.135

(2017), amended by Or Laws 2019, ch 475, § 5, the state argues

that no such prohibition exists for FSTs.4 As the state views

it, because a person has no statutory right to refuse an FST, a

request to perform FSTs “is not obscured by a statutory right

to refusal” that exists for breath tests. Thus, the state con-

tends that, because of that statutory distinction, Banks does

not apply to refusals to perform FSTs. Alternatively, even if

Banks does apply, the state remonstrates that the deputies

made it clear that their requests were only for physical coop-

eration; thus, the requests did not implicate defendant’s con-

stitutional rights, and the court properly admitted evidence

of her refusals to perform the tests. As explained below, we

are not persuaded that Banks can be interpreted so narrowly.

B. Analysis

Article I, section 9, protects “the right of the people

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

against unreasonable search, or seizure.” That provision

3

ORS 813.100 (2017) provided, in part:

“(2) No chemical test of the person’s breath or blood shall be given, under

subsection (1) of this section, to a person under arrest for driving a motor

vehicle while under the influence of intoxicants in violation of ORS 813.010 or

of a municipal ordinance, if the person refuses the request of a police officer

to submit to the chemical test after the person has been informed of conse-

quences and rights as described under ORS 813.130.”

4

ORS 813.135 (2017) provided:

“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

determining if the person is under the influence of intoxicants if the police

officer reasonably suspects that the person has committed the offense of driv-

ing 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.”

268 State v. Hamilton

mandates that law enforcement obtain a warrant before

conducting a search unless an exception to the warrant

requirement applies. State v. Steele, 290 Or App 675, 681, 414

P3d 458 (2018) (noting that warrantless searches are per se

unreasonable unless the search is conducted in accordance

with a recognized exception). Voluntary consent to search

is one such exception. State v. Paulson, 313 Or 346, 351-52,

833 P2d 1278 (1992). When a person refuses to consent to a

search, that refusal invokes the person’s constitutional right

to insist that the government obtain a warrant, and thus

evidence of the refusal may not be admitted at trial as evi-

dence of their guilt. Banks, 364 Or at 342.

Those constitutional protections apply to FSTs just

as they apply to breath tests because, like breath tests, FSTs

are searches within the meaning of Article I, section 9. See

State v. Nagel, 320 Or 24, 31, 880 P2d 451 (1994) (explaining

that FSTs involve “a series of specialized and unusual acts

designed to elicit information that [the] defendant would not

have exposed to the public without the officer’s direction”

and concluding that the administration of FSTs “constitutes

a search within the meaning of Article I, section 9”); see also

State v. Maddux, 144 Or App 34, 41, 925 P2d 124 (1996)

(holding that, where a defendant voluntarily consents to a

request to perform FSTs, the performance of the tests does

not violate Article I, section 9). Consequently, because the

deputies did not obtain a warrant and because defendant

refused to provide consent, if we determine that the depu-

ties’ questions were requests that defendant waive her con-

stitutional right against unreasonable search, her refusal to

waive that right “cannot be admitted at trial as evidence of

[her] guilt.” Banks, 364 Or at 342.

The implied-consent statutes identified by the state

do not serve to alter that constitutional premise and, in any

event, the FST statutes reflect the same reality as those

for breath tests: A person may choose to refuse the tests.

See ORS 813.135 (2017) (noting that “the person requested

to take the [FSTs] shall be informed of the consequences

of refusing to take or failing to submit to the tests”); ORS

813.136 (2017) (providing that, “[i]f a person refuses or fails

to submit to field sobriety tests as required by ORS 813.135,

Cite as 330 Or App 258 (2024) 269

evidence of the person’s refusal or failure to submit is admis-

sible in any criminal or civil action”). Further, the conse-

quences imposed for refusing to take or submit to an FST—

admissibility of the refusal in a criminal or civil action—are

the same consequences that the defendant in Banks chal-

lenged as unconstitutional if they were imposed as a result

of failing to give express consent. 364 Or at 342-43. Thus, for

breath tests and FSTs, a person retains a statutory right to

decide whether to perform the test and, in effect, whether to

revoke the consent implied by statute. Accordingly, we con-

clude that the reasoning of Banks applies equally to FSTs.

Therefore, the state may introduce evidence of a

defendant’s refusal to perform FSTs if it demonstrates that

a law enforcement officer’s request to perform FSTs “could

reasonably be understood only as a request to provide physi-

cal cooperation and not as a request for constitutionally-sig-

nificant consent to search.” Id. at 343. If the request was

ambiguous—that is, if it can reasonably be understood as

either “asking defendant to physically submit to a test that

was justified by a warrant exception,” or as “asking defen-

dant for [his, her, or their] consent to search, thereby estab-

lishing a warrant exception,”—then the state has not met

its burden, and evidence of the refusal to perform FSTs is

inadmissible. Id. Accordingly, we must consider whether, for

both the October 21, 2017, and January 6, 2018, stops, the

state met its burden of showing that the deputies’ questions

could be understood only as requests for physical coopera-

tion. After reviewing the record, we conclude that the state

did not meet that burden for either stop.

To recapitulate, the Banks court concluded that the

state could not meet its burden because the officer’s ques-

tion to the defendant—“[W]ill you take a breath test?”—was

ambiguous as to whether he was asking for physical cooper-

ation or asking the defendant for his consent to conduct the

test. Here, during the October 2017 stop, Brown told defen-

dant that he wanted to administer FSTs and asked defen-

dant, “Is that something that you would voluntarily consent

to doing tonight?” After defendant declined, Brown continued

trying to persuade her, saying “if you consented to the field

sobriety tests and I was to administer those and you don’t

270 State v. Hamilton

show indicators of impairment * * * you’re going to be able to

drive home.” Similarly, during the January 2018 stop, Hohl

asked defendant if she “would be willing to consent to some

field sobriety tests,” and Osborne asked if she would “volun-

teer to do some field sobriety tests” and noted that the FSTs

were “voluntary tests” that defendant could refuse. That the

deputies later informed her that they were asking her to sub-

mit to “purely physical” tests, read her the Rohrs admon-

ishment, and asked for her “cooperation,” is not enough to

meet the burden required by Banks. That standard requires

that the requests be “solely” for physical cooperation such

that it “could reasonably be understood only as a request to

provide physical cooperation.”5 Id. Here, during both stops,

the deputies used language that could reasonably have been

interpreted as a request that defendant voluntarily “con-

sent to search, thereby establishing a warrant exception,” or

as a request that she “physically submit to a test that was

justified by a warrant exception.” Id. Accordingly, applying

Banks, the state did not establish that defendant’s refusals

were admissible as evidence of her guilt, and the trial court

erred in denying the motion to suppress.

Having determined that the trial court erred, we

must determine whether that error was harmless. See, e.g.,

State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003) (explaining

that, under Article VII (Amended), section 3, of the Oregon

5

The state has conceded as much in other cases where a search of the under-

lying records in those cases reveals that an officer read the Rohrs admonishment

but also used language suggesting that they were asking for constitutionally signif-

icant consent to search. See State v. Martin, 321 Or App 361 (2022) (nonpreceden-

tial memorandum opinion) (conceding that Banks applies where the trooper first

told the defendant that performing the FSTs is a “voluntary thing” but later read

the Rohrs admonishment warning him that “refusal to submit to physical tests”

could be used against him); State v. Ramirez-Carmona, 313 Or App 533, 495 P3d

213 (2021) (conceding that Banks applies where the trooper told the defendant that

performing the FSTs was “voluntary,” read the Rohrs admonishment asking the

defendant to submit to “purely physical” tests, and then asked if he consented to the

tests); State v. Stills, 299 Or App 194, 447 P3d 80, rev den, 365 Or 769 (2019) (con-

ceding that Banks applies where the deputy asked the defendant if he was willing to

perform FSTs, gave the Rohrs admonishment from memory—including asking if he

would “take some voluntary, purely physical” tests, described and demonstrated the

tests, and again asked if the defendant would perform the tests). Although the state

contends that, in those cases, its concession was based on the narrow or unique

circumstances of the particular case, each involved—as here—a law enforcement

officer using language implicating both a request for constitutionally significant

consent and language implicating a request for physical cooperation.

Cite as 330 Or App 258 (2024) 271

Constitution, an appellate court will affirm a judgment if

there is “little likelihood that the particular error affected

the verdict”). The state elicited evidence of defendant’s

refusal to perform FSTs numerous times throughout the

trial and reminded the jury of defendant’s refusal during

closing argument. In addition, the court instructed the jury

that it may consider her refusal in determining whether she

was under the influence of intoxicants. In light of the record

below, we readily conclude that the trial court’s error was not

harmless as to the DUII convictions. See State v. Ramirez-

Carmona, 313 Or App 533, 537-38, 495 P3d 213 (2021) (con-

cluding that the trial court’s error in allowing evidence of

defendant’s refusal to perform filed sobriety tests in a DUII

prosecution was not harmless where, given the nature of the

evidence, jury may have relied on that refusal to convict). We

further conclude that the trial court’s error was harmless as

to the reckless driving convictions because the state did not

rely on that evidence in its closing argument; rather, the

state emphasized the evidence of defendant’s erratic driving

for both incidents, including swerving into oncoming traffic,

repeatedly accelerating and decelerating in a way that could

have caused a collision, and nearly crashing four times in a

mile stretch.

III. DEFENDANT’S REMAINING ASSIGNMENTS OF

ERROR

Defendant next challenges the admission of a urine

sample obtained following the October 2017 stop, contend-

ing that the trial court erred when it denied her motion to

suppress the sample. Defendant consented to providing the

sample following her arrest and the discovery of a pill bot-

tle in her car, and the sample was positive for various sub-

stances. Because the deputies testified that they could not

be certain where they found the pill bottle, the trial court

suppressed evidence of its discovery; however, the court

admitted evidence of the urine analysis after it concluded

that defendant’s consent to provide a urine sample was

attenuated from any misconduct. Defendant argues that the

search and discovery of the pill bottle was a violation of her

rights under Article I, section 9, and thus that her consent

to the urine analysis was a product of police misconduct that

272 State v. Hamilton

also must be suppressed. See State v. Unger, 356 Or 59, 86,

333 P3d 1009 (2014) (adhering to the principle that, where a

defendant provides voluntary consent following police mis-

conduct, the evidence must be suppressed unless the state

can show that the consent was “independent of, or only tenu-

ously related to, the unlawful police conduct”). Even assum-

ing that discovery of the pill bottle was a constitutional vio-

lation, we agree with the trial court’s determination that,

on this record, the state met its burden of proof that defen-

dant’s consent to the urine analysis was sufficiently atten-

uated from any misconduct. In particular, the state elicited

evidence that the officers did not attempt to capitalize on

the discovery of the pill bottle to obtain defendant’s consent,

defendant gave her consent after an officer gave her Miranda

warnings and after being taken to a different location from

where the pill bottle was discovered, and defendant demon-

strated that she was capable of and willing to refuse police

requests. Accordingly, we reject defendant’s challenge to the

admission of the urine sample following the October 2017

stop.

In defendant’s final two assignments of error, she

contends that the trial court erred in denying her motion to

suppress evidence obtained under the January 2018 war-

rant and in ruling that Osborne, a certified DRE, could

use a website to identify the pills found in her vehicle. We

reject defendant’s challenge to the warrant because it is not

preserved for our review, and we further conclude that we

need not reach defendant’s challenge to Osborne’s testimony

because the record could develop differently on remand.

Convictions on Counts 1 and 3 reversed and

remanded; remanded for resentencing; otherwise affirmed.