State v. STCLAIR , 245 Or. App. 159 ( 2011 )

261 P.3d 94 (2011) 245 Or. App. 159

STATE of Oregon, Plaintiff-Appellant,
v.
Steven F. STCLAIR, Defendant-Respondent.

D091992T; A144084.

Court of Appeals of Oregon.

On Appellant's Petition for Reconsideration March 25, 2011. Decided August 17, 2011.

John R. Kroger, Attorney General, Mary H. Williams, Solicitor General, and Joanna L. Jenkins, Assistant Attorney General, for petition.

Before WOLLHEIM, Presiding Judge, and BREWER, Chief Judge, and NAKAMOTO, Judge.

PER CURIAM.

The state petitions for reconsideration of our disposition in State v. Stclair, 241 Or.App. 572, 250 P.3d 464 (2011), which we affirmed without opinion. We grant the state's petition and, on reconsideration, withdraw our former disposition and reverse and remand.

Defendant was charged with driving under the influence of intoxicants, ORS 813.010(1), and reckless driving, ORS 811.140. The results of an Intoxilyzer test showed that, at the time of defendant's arrest, his blood alcohol content was .12 percent, .04 percent above the legal limit. Defendant filed a motion to suppress evidence from the Intoxilyzer test, relying on State v. Machuca, 231 Or.App. 232, 218 P.3d 145 (2009) (Machuca I), rev'd, 347 Or. 644, 227 P.3d 729 (2010), to argue that the burden was "on the state to demonstrate that a warrant could not be obtained within a reasonable time to secure the evidence." The trial court expressly relied on Machuca I in granting defendant's motion to suppress "because it was done without a warrant and without exigent circumstances."

In State v. Machuca, 347 Or. 644, 227 P.3d 729 (2010) (Machuca II), the Oregon Supreme Court reversed our decision in Machuca I. The court held that, "for purposes of the Oregon Constitution, the evanescent nature of a suspect's blood alcohol content is an exigent circumstance that will ordinarily permit a warrantless blood draw of the kind taken here." 347 Or. at 657, 227 P.3d 729. In addition, in State v. Allen, 234 Or.App. 363, 364, 228 P.3d 606 (2010), a case with similar facts to Machuca II, we held that Machuca II controlled the result and "[t]he breath test was justified by probable cause that it would reveal evidence of the crime of driving under the influence of intoxicants, and a warrant was excused because of exigent circumstances." Machuca II controls the result in this case as well. Accordingly, we conclude that the trial court erred in granting defendant's motion to suppress.

Reconsideration allowed; former disposition withdrawn; reversed and remanded.