# State v. Hamilton

> Court of Appeals of Oregon · January 24, 2024 · 330 Or. App. 258

URL: https://www.frixlaw.com/law-library/cases/9926396

## Case

- **Court:** Court of Appeals of Oregon
- **Decided:** January 24, 2024
- **Citations:** 330 Or. App. 258; 543 P.3d 704
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 10 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9926396

## Opinion text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9926396. Public record. Not legal advice.