State v. Girod , 245 Or. App. 642 ( 2011 )

263 P.3d 1113 (2011) 245 Or. App. 642

STATE of Oregon, Plaintiff-Appellant,
v.
Joshua B. GIROD, aka Joshua Bradly Girod, Defendant-Respondent.

09CR0798; A144502.

Court of Appeals of Oregon.

Submitted May 12, 2011. Decided September 21, 2011.

John R. Kroger, Attorney General, David B. Thompson, Interim Solicitor General, and Joanna L. Jenkins, Assistant Attorney General, filed the brief for appellant.

Daniel M. Hinrichs filed the brief for respondent.

Before SCHUMAN, Presiding Judge, and WOLLHEIM, Judge, and NAKAMOTO, Judge.

PER CURIAM.

In this prosecution for driving under the influence of intoxicants (DUII), the state appeals from the trial court's suppression of a breath test result. In reliance on our opinion in State v. Machuca, 231 Or.App. 232, 218 P.3d 145 (2009), rev'd, 347 Or. 644, 227 P.3d 729 (2010), the trial court held that defendant had not voluntarily consented to the test and that there were no exigent circumstances that would justify a warrantless seizure of defendant's breath sample. We agree with the state that in light of the Supreme Court's opinion reversing this court in Machuca and this court's opinion in State v. Allen, 234 Or.App. 363, 228 P.3d 606 (2010), the trial court erred in excluding the breath test results and the order suppressing the evidence must be reversed.

Officer Kirk stopped defendant for the offense of reckless driving, and it is undisputed on appeal that he immediately thereafter developed probable cause to believe that defendant had committed the offense of DUII. Under the Supreme Court's opinion in Machuca, when an officer has probable cause to arrest a person for a crime involving the blood alcohol content of the suspect, "the evanescent nature of a suspect's blood alcohol content is an exigent circumstances that will ordinarily permit a warrantless blood draw[.]" 347 Or. at 657, 227 P.3d 729. In Allen, we applied the holding of Machuca to a breath test. 234 Or.App. at 364, 228 P.3d 606. We conclude for that reason that the trial court erred in granting defendant's motion to suppress the breath test.

Reversed and remanded.