State v. Portulano , 320 Or. App. 335 ( 2022 )

335
Argued and submitted January 26, 2021, reversed and remanded June 15, 2022
STATE OF OREGON,
Plaintiff-Respondent,
v.
FRANCIS MICHAEL PORTULANO,
Defendant-Appellant.
Josephine County Circuit Court
17CR05939; A171262
514 P3d 93
Defendant appeals from a judgment of conviction for driving under the influ-
ence of intoxicants (DUII), ORS 813.010. He argues that the trial court erred,
under Article I, section 9, of the Oregon Constitution and the Fourth Amendment
to the United States Constitution, when it denied his motion to suppress evi-
dence obtained in a warrantless blood draw. Defendant asserts that the Oregon
Supreme Court’s decision in State v. McCarthy, 369 Or 129, 501 P3d 478 (2021),
implicitly supplanted State v. Machuca, 347 Or 644, 227 P3d 729 (2010), and that
under McCarthy, his conviction must be reversed. Held: The Court of Appeals con-
cluded that McCarthy did not disavow Machuca. Thus, as to Article I, section 9,
the trial court did not err. As to the Fourth Amendment, United States Supreme
Court precedent requires courts to consider the totality of the circumstances
in determining whether an exigency existed sufficient to justify a warrantless
blood draw. Here, the court concluded that the totality of the circumstances did
not support the existence of an exigency. Accordingly, the warrantless seizure
of defendant’s blood was a violation of the Fourth and Fourteenth Amendments.
Reversed and remanded.
Thomas M. Hull, Judge.
Nora Coon, Deputy Public Defendant, argued the cause
for appellant. Also on the brief was Ernest G. Lannet, Chief
Defender, Criminal Appellant Section, Office of Public
Defense Services.
Joanna L. Jenkins, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before James, Presiding Judge, and Lagesen, Chief Judge,
and Kamins, Judge.
336 State v. Portulano
JAMES, P. J.
Reversed and remanded.
Lagesen, C. J., concurring.
Kamins, J., dissenting.
Cite as 320 Or App 335 (2022) 337
JAMES, P. J.
This case involves exigency, blood draws, and elec-
tronic warrants. Defendant appeals from a judgment of con-
viction of, among other things, one count of driving under
the influence of intoxicants (DUII) constituting a felony, ORS
813.010, arguing that the trial court erred, under Article I,
section 9, of the Oregon Constitution, and the Fourth
Amendment to the United States Constitution, in denying
his motion to suppress evidence obtained in a warrantless
blood draw. As discussed in detail below, at the time of this
incident, Josephine County law enforcement purposefully
declined to utilize electronic warrant procedures for DUII
blood draws, instead relying exclusively on claims of exigent
circumstances from the dissipation of blood alcohol levels to
justify warrantless blood draws. As such, we are called upon
to discern the proper consideration of the availability and
use of electronic warrant procedures—or the lack thereof—
in the calculation of exigency for warrantless DUII blood
draws.
For the purposes of the Oregon Constitution this
requires us to interpret State v. Machuca, 347 Or 644, 657,
227 P3d 729 (2010) in light of State v. McCarthy, 369 Or 129,
501 P3d 478 (2021). Defendant argues that, given McCarthy,
“unless the county has affirmatively adopted policies to cre-
ate an efficient electronic warrant process, that county can-
not rely solely on the potential loss of evidence while police
wait for a warrant to establish exigency.” The state argues
that “McCarthy does not alter the [Machuca] analysis appli-
cable here.” As we explain, the truth lies somewhere in the
middle. McCarthy does affect the calculation of exigency for
DUII blood draws under Machuca, and how it is litigated.
However, we ultimately conclude that, under Machuca, the
warrantless blood draw here was permissible.
We reach a different conclusion under the Fourth
Amendment. As we explain, unlike the Oregon Supreme
Court’s analysis in Machuca, the Fourth Amendment analysis
articulated in Missouri v. McNeely, 569 US 141, 148, 133
S Ct 1552, 185 L Ed 2d 696 (2013) requires consideration of
the totality of the circumstances to determine if exigency
existed, and the dissipation of alcohol in the blood is but one
338 State v. Portulano
of many factors to consider. Here, the totality of the circum-
stances includes the availability of electronic warrant proce-
dures, the availability of judicial magistrates, and the pur-
poseful choice by law enforcement countywide to decline to
ever, under any circumstance, exercise that option. McNeely
does not permit a functional per se exigency, and we accord-
ingly reverse because the warrantless blood draw violated
the Fourth Amendment.
When reviewing a denial of a motion to suppress,
“we are bound by the facts found by the trial court that are
supported by evidence in the record.” State v. Gerety, 286
Or App 175, 179, 399 P3d 1049 (2017). Whether those facts
describe circumstances that justify a warrantless search
or seizure is a question of law. The facts in this case are
undisputed.
In Josephine County on October 19, 2016, at around
9:00 p.m., dispatch notified Trooper Heather West of a sus-
picious call. Using the onboard computer in her patrol car,
West was able to select and read the details of the call.
Defendant’s wife reported that defendant “was at a * * *
bar, that he drives intoxicated on a regular basis, that he’s
suspended from driving, and that he would soon be leaving
that bar”; upon his return, he would likely be violent with
her. West parked outside of the bar, and again, using her
onboard computer, ran the car’s registration and confirmed
that it belonged to defendant; Department of Motor Vehicles
records returned defendant “as felony suspended driving.”
At approximately 9:40 p.m., West saw defendant’s
car driving away from the bar and she pulled out behind
him. When defendant accelerated, West turned on her over-
head lights. Defendant continued accelerating, reaching
speeds above 70 mph. The pursuit ended at approximately
9:50 p.m. when defendant crashed, flipping the car upside
down and trapping himself in the driver’s seat. The crash
occurred in a rural part of the county.
While waiting for emergency personnel to respond,
West focused on preservation of life by securing scene
safety. She set up traffic flares, communicated with defen-
dant through a broken window, and provided updates to
Cite as 320 Or App 335 (2022) 339
responding units. Medical personnel arrived at approxi-
mately 10:00 p.m. Ultimately, two fire trucks, an ambulance,
and one or two tow trucks responded. Sergeant Boice,
Trooper Henderson, and Officer Wallace each responded as
well. None of the police officers directly helped to extricate
defendant from his vehicle: West and Boice focused on “pre-
serving roadway evidence, making sure that any motoring
public didn’t * * * come up on the crash and cause further
hazards,” Henderson provided additional backup to West and
Boice, and Wallace began conducting a traffic investigation.
Extricating defendant from his vehicle took the
nonpolice emergency responders 30 to 40 minutes. Once
defendant had been extricated, at approximately 10:40 p.m.,
emergency personnel advised West that they could smell the
strong odor of alcohol coming from defendant. At that point,
Boice instructed Henderson to follow the ambulance to the
hospital and to secure a blood draw from defendant; they did
not discuss a search warrant.
Back at the crime scene, as defendant was in trans-
port to the hospital, Wallace continued his traffic investiga-
tion, and West and Boice headed to defendant’s wife’s house
to inform her of the accident. West testified that two officers
were necessary both for general officer safety and because
they did not know the full extent of defendant’s injuries, and
therefore, they could be making a notification of death. They
arrived at the house about 10 minutes later, and after call-
ing defendant’s wife, they discovered that she had already
learned of the accident and was on her way to the hospital.
West then headed to the hospital, arriving 15 to 20 minutes
later.
Defendant arrived at hospital around 11:00 p.m.
Upon arrival Henderson told the staff that he wanted a
blood draw. Defendant apparently refused that request and,
at 11:04 p.m., Henderson instructed a phlebotomist to per-
form a blood draw. Medical personnel then took defendant
off for x-ray imaging. The blood draw eventually disclosed
a blood alcohol content (BAC) of 0.148. West testified that
based on her training and experience, once drinking has
stopped, BAC dissipates at an estimated rate of .015 per
hour.
340 State v. Portulano
At trial, defendant moved to suppress the evidence
obtained in the warrantless blood draw. At the motion hear-
ing, the court took notice of ORS 133.545(7) and (8), which
relate to electronic warrants and provide:
“(7) Instead of the written affidavit described in sub-
section (6) of this section, the judge may take an oral state-
ment under oath. The oral statement shall be recorded and
a copy of the recording submitted to the judge who took the
oral statement. In such cases, the judge shall certify that
the recording of the sworn oral statement is a true record-
ing of the oral statement under oath and shall retain the
recording as part of the record of proceedings for the issu-
ance of the warrant. The recording shall constitute an affi-
davit for the purposes of this section. The applicant shall
retain a copy of the recording and shall provide a copy of
the recording to the district attorney if the district attor-
ney is not the applicant.
“(8)(a) In addition to the procedure set out in subsec-
tion (7) of this section, the proposed warrant and the affi-
davit may be sent to the court by facsimile transmission
or any similar electronic transmission that delivers a com-
plete printable image of the signed affidavit and proposed
warrant. The affidavit may have a notarized acknowledg-
ment, or the affiant may swear to the affidavit by tele-
phone. If the affiant swears to the affidavit by telephone,
the affidavit may be signed electronically. A judge admin-
istering an oath telephonically under this subsection must
execute a declaration that recites the manner and time of
the oath’s administration. The declaration must be filed
with the return.”
Evidence at the motion hearing showed the fol-
lowing. From the perspective of the judiciary in Josephine
County, judges were available to provide electronic warrants.
Officers in Josephine County were emailed a list of rotating
judges that are available around the clock for issuing search
warrants. Additionally, by making a call on speaker phone,
Josephine County police officers could use the WatchGuard
system in their patrol vehicles to record both sides of a tele-
phone conversation. Cell phone service permitting, the police
officers also had email capabilities from their patrol cars.
Despite this infrastructure, however, none of the testifying
Cite as 320 Or App 335 (2022) 341
officers had ever applied for a telephonic search warrant in
Josephine County.
The initial case officer is responsible for writing
the warrant application. West was the initial case officer;
accordingly, it would have been her responsibility to apply
for a search warrant on the night of the arrest.
West did not speak with Boice, Henderson, or
Wallace about obtaining a warrant to withdraw defendant’s
blood. On the night of the incident, West had no experience
applying for electronic search warrants. West testified that,
in Josephine County, if a person arrested for DUII refused
a breath test, officers did not apply for a search warrant
to obtain a blood draw. Rather, a refusal at the Josephine
County jail would either end the investigation, or, depend-
ing on the circumstances, the suspect would be brought to
the hospital for a warrantless blood draw based on exigent
circumstances. By contrast, in Lane County, where West
worked at the time of the hearing, if a person refused a
breath test, the officer would then apply for a search war-
rant to obtain a blood draw.
At the time of the hearing, Boice had over 18 years
of police experience in both Jackson County and Josephine
County. He had never applied for a telephonic search war-
rant in Josephine County. Boice had applied for telephonic
search warrants for DUII blood draws in neighboring
Jackson County. He did not specify the amount of time that
it takes, but did describe the process:
“[BOICE]: So once you decide that you’re going to apply
for a telephonic search warrant begins the process of filling
out a, what we have now in Jackson County is a telephonic
search warrant template.
“[DEFENSE COUNSEL]: Okay.
“[BOICE]: And once the facts of the case and your
probable cause are recorded, you have to acquire an on call
Judge. They also have lives, especially in the middle of the
night and they don’t always answer initially. So you have,
you have to, and I don’t blame them, so you have to locate
one and actually get one. The last Jackson County search
warrant that I wrote telephonically, we had to go to a second
342 State v. Portulano
Judge and once the Judge answered, you have to have the
Dispatch Center, so Southern Oregon Communications, or
the OSP, Southern Communications Center, SCC has to
contact the Judge by phone, initiate the phone call, explain
to them what’s going on, and they record the phone call for
you, or you can just deal with the Judge directly[—]
“[DEFENSE COUNSEL]: Okay.
“[BOICE]: [—]and record it via your patrol car camera
[because] usually you’re just sitting outside the hospital in
your patrol car. You then read the Judge the search war-
rant and the affidavit and at which point you swear to it
and they authorize signature for the Judge, obviously over
the phone. At that point you can go and serve the search
warrant.
“[DEFENSE COUNSEL]: That sounds like it’s pretty
quick.
“[BOICE]: Hardly.
“[DEFENSE COUNSEL]: As long as they pick up the
phone, right?
“[BOICE]: Yes.
“[DEFENSE COUNSEL]: Okay. So that’s not [going
to] be any five hours, right?
“[BOICE]: A telephonic search warrant taking five
hours? No, I don’t believe so.”
Boice testified, however, that the process for obtain-
ing a blood draw after a breath test refusal is different in
Josephine County than in Jackson County:
“[BOICE]: [You’re asking, in Jackson County, w]ould I
take a blood draw after they refused a breath test if * * * I
did not have a warrant?
“[DEFENSE COUNSEL]: Correct.
“[BOICE]: No, I would not. Unless there was exigency
and another crime involved.
“[DEFENSE COUNSEL]: But in Josephine County
you would?
“[BOICE]: Based on exigency, yes.
Cite as 320 Or App 335 (2022) 343
“[DEFENSE COUNSEL]: And the only exigency being
the evaporation of the alcohol, the evanescence of the alco-
hol, the dissipation of the alcohol?
“[BOICE]: That’s what your exigency is based on, yes
ma’am.”
Henderson had served as a Josephine County police
officer since 1997. She had never applied for a telephonic
search warrant, nor had she ever applied for a search war-
rant to withdraw blood in a DUII arrest.
Multiple officer witnesses attempted to estimate
the time it would take to obtain a DUII blood draw war-
rant in Josephine County, extrapolating from narcotics war-
rants. In Henderson’s experience, the application process for
a written warrant in a narcotics case takes approximately
two hours. Based on Boice’s experience applying for narcot-
ics search warrants, he estimated that applying for a search
warrant for a DUII case in Josephine County would have
taken no less than five hours.
In denying the motion to suppress, the court ruled
that exigent circumstances justified a warrantless blood
draw based on several factors. Probable cause, which is nec-
essary when applying for a search warrant, was not estab-
lished until paramedics notified West of the odor of alcohol
emanating from defendant. Accordingly, about 45 minutes
to an hour passed between when West had probable cause
and when the warrantless blood draw occurred. The court
noted:
“I’m not stating that you draw the line at when the blood
draw was taken at 11:04, but realize that we have these
other exigencies: We have a person in the emergency room
that as Trooper Henderson testified to was in ex, in extreme
pain and was getting ready to be sent off for x-rays. And so
if they can’t get the blood draw before the person’s sent off
to get x-rays, how long is that going to take? That wasn’t
really, that, that wasn’t gone into, but then it didn’t appear
that [defendant] was then available for questioning until
sometime after midnight which I think would be too long
to wait to do the blood draw and the dissipation rate of alco-
hol from the blood is high enough that the officer shouldn’t
have to wait until after midnight[.]”
344 State v. Portulano
The court also considered the practical problems in obtain-
ing a warrant that existed at the time:
“Okay one of those practical problems is based upon
Sergeant Boice’s testimony, in 2016 they didn’t have this
template that they use apparently regularly in Jackson
County. I find it somewhat, well I find it interesting that
they have a completely different policy of how they deal
with this in Jackson County than they do here. Somebody
gives them the idea that they’re not [going to] blow here in
Josephine County, they go directly to the hospital and take
a draw and depend upon the fact that the dissipation rate
is enough of an exigency to allow them to that. Apparently
in Jackson County they absolutely don’t do that. It almost
sounds like they go, they got through the admonishment,
they read them the implied consent rights, they wait their
15 minutes, they wait until the guy refuses, then they get
on the phone, they have a template, they go through the pro-
cess to obtain a telephonic warrant, or not under those cir-
cumstances. That’s what I glean from Trooper Boice’s testi-
mony. He didn’t state how long it took and he wasn’t asked
how long it took to get a telephonic warrant in Jackson
County. The, but a lot of those technologies didn’t exist in
2016. It didn’t appear that he had, that they had their tem-
plate and they were not engaged in doing that in Jackson
County in 2016. And I, the reason why I keep saying that
is because I believe things are different now. And so if I
was hearing this, and this was a 2018 case, I think I might
come to a different conclusion with regard to the motion
to suppress. I, I don’t think at the time this, and I’m using
technologies broadly, I mean the, certainly they had the
technology to make the call, but this was not a process, this
still would take, the officer would have needed to, whether
to just pull over in her patrol vehicle or go somewhere to
come up with an affidavit. And she would have been, she,
she would have been writing this from scratch without * * *
necessarily any sort of template and composing this affi-
davit and that’s [going to] take longer. And I think that
connected with then contacting a Judge. Certainly there
was a number. There very likely would have been a Judge
on the other end of the phone. We have on call Judges where
we rotate it week by week, and when we’re on, we’re on,
and we expect a call. And so, but that would take some
time and whether they ran then, then made another call
from the Southern Dispatch Center or recorded as Senior
Trooper, or Sergeant Boice had stated, could just do the
Cite as 320 Or App 335 (2022) 345
call from the patrol vehicle and record it on the, on the,
essentially the WatchGuard. I mean he, he gave that as an
alternative. “I don’t think under these circumstances that
was going to get done in the 45 minutes to an hour that I
see as the window from when Trooper West had probable
cause to, that [defendant] was driving under the influence
of intoxicants to, thereabouts of the blood draw. Whether
that was 11:15, even though the blood draw was taken at
11:04, [defendant] was then rushed off to x-rays, so there’s
about an hour there, 45 minutes to an hour I don’t believe
that that would have happened.”
ANALYSIS
Before we address a federal constitutional claim,
the proper sequence is to first analyze the state constitu-
tional claim. Sterling v. Cupp, 290 Or 611, 614, 625 P2d 123(1981). For our purposes here, however, we discuss both the
state and federal constitutional approaches to warrantless
blood draws together, so as to better explain their differ-
ences. We will then apply them sequentially, beginning, as
appropriate, with the state constitution.
“A blood draw conducted by the police is simultane-
ously a search of a person and a seizure of an ‘effect’—that
person’s blood.” State v. Perryman, 275 Or App 631, 637, 365
P3d 628 (2015). “Such an invasion of bodily integrity impli-
cates an individual’s most personal and deep-rooted expec-
tations of privacy.” Missouri v. McNeely, 569 US 141, 148, 133
S Ct 1552, 185 L Ed 2d 696 (2013). Accordingly, a blood draw
“implicates constitutional guarantees against unreasonable
searches and seizures” under both the state and federal con-
stitutions. State v. Milligan, 304 Or 659, 664, 748 P2d 130(1988); see also Schmerber v. California, 384 US 757, 767,
86 S Ct 1826, 16 L Ed 2d 908 (1966) (“[Blood] testing pro-
cedures plainly constitute searches of ‘persons,’ and depend
antecedently upon seizures of ‘persons,’ within the meaning
of [the Fourth Amendment.]”).
A. Warrantless Blood Draws Under Article I, Section 9, and
State v. Machuca
Article I, section 9, provides:
“No law shall violate the right of the people to be secure
in their persons, houses, papers, and effects, against
346 State v. Portulano
unreasonable search, or seizure; and no warrant shall issue
but upon probable cause, supported by oath, or affirmation,
and particularly describing the place to be searched, and
the person or thing to be seized.”
Under Article I, section 9, a warrantless search
or seizure, such as a forced blood draw, is presumptively
unreasonable. Perryman, 275 Or App at 637. However, the
state may overcome this presumption by demonstrating that
a warrantless search fell within a specifically established
and carefully delineated exception to the warrant require-
ment. Id.; see also State v. Baker, 350 Or 641, 647, 260 P3d
476 (2011) (“The state has the burden of proving that cir-
cumstances existing at the time were sufficient to satisfy
any exception to the warrant requirement.”).
One of the well-recognized exceptions to the war-
rant requirement exists when the police have probable cause
to arrest the suspect, coupled with exigent circumstances.
State v. Sullivan, 265 Or App 62, 67, 333 P3d 1201 (2014).
“Exigent circumstances include, among other things, situ-
ations in which immediate action is necessary to prevent
the disappearance, dissipation, or destruction of evidence.”
State v. Meharry, 342 Or 173, 177, 149 P3d 1155 (2006). In
the context of a DUII investigation, the natural dissipation
of alcohol by metabolic processes threatens the destruction
of evidence. And because the percentage of alcohol in the
suspect’s blood begins to diminish shortly after drinking
stops, exigent circumstance often exist. Perryman, 275 Or
App at 638.
In 2010, the Oregon Supreme Court held that under
Article I, section 9, a warrantless blood draw in a DUII case
is almost always justified. Machuca, 347 Or at 657. More
specifically, due to the evanescent nature of alcohol in the
blood, rarely will an exigency not be found. Id.In Machuca, the defendant was transported to the
hospital after suffering injuries in a single-car accident.
Id. at 646. Approximately 70 minutes after the investi-
gating officer “concluded that there was probable cause to
believe that defendant had committed the crime of DUII,”
he instructed a nurse to conduct a warrantless blood draw
of the defendant. Id. at 647. Before trial, the defendant filed
Cite as 320 Or App 335 (2022) 347
a motion to suppress the blood alcohol evidence, arguing
that the warrantless blood draw violated his rights under
Article I, section 9, and the Fourth Amendment. Id. The
Oregon Supreme Court upheld the trial court’s denial of the
defendant’s motion to suppress, holding that the warrant-
less blood draw did not violate constitutional protections
against warrantless searches or seizures because the officer
had probable cause coupled with an exigent circumstance,
namely, the natural dissipation of the defendant’s BAC.
Id. at 656-57.
Machuca’s analysis began by disavowing the court’s
prior analysis in State v. Moylett, 313 Or 540, 544, 836 P2d
1329 (1992). In Machuca, the court had held that that the
mere fact that alcohol was dissipating was insufficient to
establish an exigency, reasoning:
“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 war-
rantless 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.”
Machuca, 347 Or at 656 (internal quotation marks and cita-
tions omitted). However, the court concluded, not that the
reasoning of Moylett was flawed, but that its practical appli-
cation had resulted in an improper focus on the speed of
warrant acquisition, and therefore it was disavowed:
“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 evi-
dence,’ unnecessarily 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, how-
ever, shifted that focus away from the blood alcohol exi-
gency itself and onto the speed with which a warrant pre-
sumably 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.”
348 State v. Portulano
Id.; see also State v. Mazzola, 356 Or 804, 814-15, 345 P3d
424 (2015) (discussing Machuca’s disavowal of Moylett).
Machuca replaced the Moylett analysis with a model
that focused almost exclusively on the dissipation of alcohol.
“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 ines-
capable fact that, in every such case, evidence is disappear-
ing and minutes count. We therefore declare that, for pur-
poses 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. We do so, however, understanding that
particular 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 circum-
stances. We anticipate that only in those rare cases will a
warrantless blood draw be unconstitutional.”
Machuca, 347 Or at 656-57 (emphasis in original).
In Machuca, the court did not elaborate on how such
a “rare case” would be shown, nor whose burden it would
be.1 Would the defendant show that a warrant could have
been obtained—making it the rare case, or would the state
have to show that a warrant could not have been obtained,
making it not the rare case? Nor did the Machuca court
elaborate on how a court is to evaluate the constitutional-
ity of a warrantless seizure and search through examining
whether a hypothetical warrant could have been executed
“significantly faster”—a unique standard that is not found
1
Although Machuca held out an escape valve for a “rare case,” where a war-
rant could have been obtained and executed significantly faster than the pro-
cess used, that rare case might be fictional. In disavowing Moylett, the court
in Machuca revived the analysis of Milligan that a “[w]arrantless seizure and
search under such circumstances therefore is constitutionally justified, unless
a warrant can be obtained without sacrificing the evidence.” 304 Or at 665-66.
However, as noted in Machuca, “Milligan, however, illustrates that when prob-
able cause to arrest for a crime involving the blood alcohol content of the sus-
pect is combined with the undisputed evanescent nature of alcohol in the blood,
those facts are a sufficient basis to conclude that a warrant could not have been
obtained without sacrificing that evidence.” 347 Or at 656.
Cite as 320 Or App 335 (2022) 349
elsewhere in constitutional analysis, or in other contexts.
The court itself acknowledged some of these unresolved
questions in State v Ritz, 361 Or 781, 793-94, 399 P3d 421
(2017):
“The state reads both Machuca and Mazzola as uphold-
ing the constitutionality of a warrantless exigency search
based on the loss of any evidence of an intoxicating sub-
stance in the suspect’s body. * * *
“Defendant, on the other hand, contends that an exi-
gency search is justified only when the law enforcement
interests advanced by a warrantless search outweigh the
privacy interests at stake. Defendant argues that, although
preventing the destruction of evidence is a legitimate law
enforcement interest, the weight of that interest must be
discounted by the chance that an exigency search will fail
to prevent the evidence from being destroyed. Defendant
points out that, in this case, in order to preserve defen-
dant’s BAC evidence without a warrant, the officers were
statutorily required to obtain his consent, which the inves-
tigating officers had no reason to expect.
“* * * * *
“At its core, the parties’ dispute is about the factors
that courts should consider, and how those factors should
be weighed, in determining whether an exigency search
is justified. The state, in effect, gives decisive weight to
the question of whether obtaining a warrant would delay
preserving evidence that is dissipating. Defendant main-
tains that preventing the further dissipation of evidence
is merely a component of the law enforcement interest that
must then be weighed against the extent the privacy inter-
ests invaded by a search.
“The record before us, however, does not allow us to
resolve that dispute.”
Questions aside, Machuca controls the Article I,
section 9 analysis for warrantless blood draws. That consti-
tutional analysis may be characterized as a race to the nee-
dle approach. If an officer can obtain a blood sample from a
suspect faster than she can obtain a warrant from a mag-
istrate, then, under Machuca, a warrantless blood draw is
permissible. Id.350 State v. Portulano
B. Warrantless Blood Draws Under the Fourth Amendment
and Missouri v. McNeely
The Fourth Amendment provides, in relevant part,
“The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and sei-
zures, shall not be violated, and no Warrants shall issue,
but upon probable cause * * *.” Compulsory blood draws are
“intrusions into the human body” subject to the Fourth
Amendment’s prohibition on unreasonable searches and sei-
zures. Schmerber, 384 US at 767-68.
In Schmerber, the Court noted:
“The interests in human dignity and privacy which the
Fourth Amendment protects forbid any such intrusions on
the mere chance that desired evidence might be obtained.
In the absence of a clear indication that in fact such evi-
dence will be found, these fundamental human interests
require law officers to suffer the risk that such evidence
may disappear unless there is an immediate search.
“Search warrants are ordinarily required for searches
of dwellings, and absent an emergency, no less could be
required where intrusions into the human body are con-
cerned. * * * The importance of informed, detached and
deliberate determinations of the issue whether or not to
invade another’s body in search of evidence of guilt is indis-
putable and great.”
Id. at 769-70.
The Supreme Court reaffirmed those principles in
Birchfield v. North Dakota, 579 US 438, 136 S Ct 2160, 195
L Ed 2d 560 (2016), where it distinguished breath tests from
blood tests:
“The impact of breath tests on privacy is slight, and the
need for [blood alcohol concentration] testing is great.
“We reach a different conclusion with respect to blood
tests. Blood tests are significantly more intrusive, and
their reasonableness must be judged in light of the avail-
ability of the less invasive alternative of a breath test.”
Id. at 474.
Cite as 320 Or App 335 (2022) 351
The prohibition against unreasonable searches or
seizures under the Fourth Amendment shares many simi-
larities with Article I, section 9. However, in the context of a
warrantless blood draw for purposes of a DUII investigation,
the exigency calculation is not the same. After Schmerber,
courts split on whether exigency was judged under a total-
ity analysis, or whether the involvement of intoxicated driv-
ing, or an accompanying accident, created a type of per se
exigency in all instances. See, e.g., State v. Johnson, 744
NW2d 340 (Iowa 2008) (applying totality analysis), State v.
Rodriguez, 2007 UT 15, 156 P3d 771 (same), State v. Shriner,
751 NW2d 538 (Minn 2008) (holding that the natural dis-
sipation of blood-alcohol evidence alone constitutes a per se
exigency); State v. Bohling, 173 Wis 2d 529, 494 NW2d 399(1993) (same); State v. Woolery, 116 Idaho 368, 775 P2d 1210(1989) (same). The Court took review in McNeely to resolve
that split of authority, and to clarify “whether the natu-
ral dissipation of alcohol in the bloodstream establishes a
per se exigency that suffices on its own to justify an excep-
tion to the warrant requirement for nonconsensual blood
testing in drunk-driving investigations.” McNeely, 569 US
at 147. The Court answered with a firm rejection of a per
se rule, holding that the context of impaired driving and
blood draws is no different from traditional exigency—the
state has the burden to establish the exigency under the
totality of the circumstances. Id. at 156 (“Whether a war-
rantless blood test of a drunk-driving suspect is reasonable
must be determined case by case based on the totality of the
circumstances.”).
Although the Court did not provide a “detailed dis-
cussion of all the relevant factors that can be taken into
account in determining the reasonableness of acting with-
out a warrant,” several factors were discussed. Id. at 165(emphasis added). These include: (1) the availability of a
magistrate; (2) the need for police to attend to and inves-
tigate a car accident; (3) technology that enables police
to secure warrants quickly; (4) the procedures for obtain-
ing a warrant; and (5) other practical problems that pre-
vent law enforcement from obtaining a warrant within a
timeframe that still preserves the evidence. Id. at 155-56,
164.
352 State v. Portulano
McNeely’s resolution of the split of authority elimi-
nated any legitimacy of a per se analysis under the Fourth
Amendment in the blood draw context. As with typical exi-
gency, the state has the burden to show, under the specific
facts and circumstances of the case, that the exigency exists.
Accordingly, under the Fourth Amendment, an officer’s rea-
sonable belief that obtaining a warrant will not be signifi-
cantly faster than obtaining the suspect’s blood is merely one
consideration under the totality of the circumstances. Id. at
157. Critically, as explained below in our discussion differ-
entiating Article I, section 9, from the Fourth Amendment,
McNeely expressly rejected the argument that “a warrant-
less blood draw is permissible if the officer could not secure
a warrant (or reasonably believed he could not secure a
warrant) in the time it takes to transport the suspect to a
hospital or similar facility and obtain medical assistance.”
Id. at 156-57 (rejecting the concurrence of Justice Roberts).
In rejecting that argument, the Court recognized that such
a rule—the race to the needle approach of Machuca—was
functionally a “modified per se rule.” Id. at 157.
The Court explained that “making exigency com-
pletely dependent on the window of time between an arrest
and a blood test produces odd consequences.” Id. For exam-
ple, under a race to the needle approach, “if a police officer
serendipitously stops a suspect near an emergency room, the
officer may conduct a nonconsensual warrantless blood draw
even if all agree that a warrant could be obtained with very
little delay under the circumstances (perhaps with far less
delay than an average ride to the hospital in the jurisdic-
tion).” Id. Next, such an approach “might discourage efforts
to expedite the warrant process because it categorically
authorizes warrantless blood draws so long as it takes more
time to secure a warrant than to obtain medical assistance.”
Id. Moreover, pinning the warrant requirement on the expe-
ditiousness of the procedure in place “would improperly
ignore the current and future technological developments in
warrant procedures, and might well diminish the incentive
for jurisdictions to pursue progressive approaches to war-
rant acquisition that preserve the protections afforded by
the warrant while meeting the legitimate interests of law
enforcement.” Id. at 156 (internal quotation marks omitted);
Cite as 320 Or App 335 (2022) 353
see also Rodriguez, 156 P3d at 779. And as mentioned, such
an approach would be, in essence, a “modified per se rule”
that is at odds with the totality of the circumstances frame-
work demanded by the Fourth Amendment. McNeely, 569
US at 157.
C. State v. McCarthy
The approaches of Machuca and McNeely juxta-
posed, we now turn back to Article I, section, 9, and the
effect, if any, of McCarthy, 369 Or at 170-71. There, the
Oregon Supreme Court disavowed the per se automobile
exception, and in so doing, drew heavily on McNeely. The
court began by noting:
“[B]oth this court and the Supreme Court have recognized
problems with per se exceptions to warrant requirements.
In McNeely, the Court rejected an argument that the natu-
ral metabolization of alcohol in the bloodstream establishes
a per se exigency that justifies an exception to the Fourth
Amendment’s warrant requirement for nonconsensual
blood testing in all cases involving driving under the influ-
ence of alcohol.
“In doing so, the Court acknowledged that some cir-
cumstances will make obtaining a warrant impractical
such that the dissipation of alcohol from the bloodstream
will support an exigency justifying a properly conducted
warrantless blood test, but it determined that each case
should be decided on its own facts, and that a per se rule
would reflect considerable overgeneralization. * * * In addi-
tion, the Court observed that a per se rule would improperly
ignore the current and future technological developments
in warrant procedures, and might well diminish the incen-
tive for jurisdictions to pursue progressive approaches to
warrant acquisition that preserve the protections afforded
by the warrant while meeting the legitimate interests of
law enforcement. * * *
“Thus, even in circumstances where the sought-after
evidence is actually dissipating, the Court declined to cre-
ate a per se rule. Such a rule would be overbroad, could dis-
courage the development and utilization of improvements
to the warrant process, and was not necessary.”
McCarthy, 369 Or at 170-71 (internal quotation marks and
citations omitted).
354 State v. Portulano
The Oregon Supreme Court then expressed juris-
prudential concerns that motivated the majority in McNeely,
“Following McNeely, this court has also expressed
concern about creating broad exceptions to the warrant
requirement based on generalizations about the length of
time it takes to get a warrant.”
McCarthy, 369 Or at 171. The court explained that categori-
cal exceptions risk “undermin[ing] the warrant requirement
by allowing officers to plan to conduct warrantless searches
even when they could obtain warrants.” Id. at 172.
Ultimately, in the context of the automobile excep-
tion, the court announced the following rule:
“[I]n order to justify a warrantless seizure or search of
a vehicle based on exigent circumstances, the state must
prove that exigent circumstances actually existed at the
time of the seizure or the search, each of which must be
separately analyzed. * * *
“To prove that such an exigency existed, the state must
prove that it could not obtain a warrant through reason-
able steps, which include utilizing available processes for
electronic warrants. Officers cannot create exigent circum-
stances by [their] own inaction. Similarly, law enforcement
agencies and courts cannot create exigent circumstances
by failing to take reasonable steps to develop warrant pro-
cesses that protect against the invasion of the rights of a
citizen that results from an unnecessarily cumbersome
warrant process.”
Id. at 177 (internal quotation marks and citations omitted).
APPLICATION
With the foregoing in mind, we now turn to its
application, beginning with Article I, section 9. Defendant
argues that McCarthy implicitly supplanted Machuca, at
least in part, and compels reversal in this case:
“McCarthy stated explicitly that, in the context of delay for
a warrant that could lead to loss of evidence, ‘law enforce-
ment agencies and courts cannot create exigent circum-
stances by failing to take reasonable steps to develop war-
rant processes that protect against the ‘invasion of the
rights of a citizen’’ * * * that results from an unnecessarily
cumbersome warrant process. * * *
Cite as 320 Or App 335 (2022) 355
“* * * * *
“McCarthy indicates that that failure to establish a pro-
cedure for telephonic or electronic warrants means that,
in this case, the state could not rely on a state-created
exigency involving the imminent destruction of evidence
because a warrant would take too long to obtain.”
We readily acknowledge that McCarthy’s holding
that “[t]o prove that such an exigency existed, the state
must prove that it could not obtain a warrant through rea-
sonable steps,” McCarthy, 369 Or at 177, is analytically dif-
ficult to reconcile with Machuca’s holding that “the evanes-
cent nature of a suspect’s blood alcohol content is an exigent
circumstance that will ordinarily permit a warrantless
blood draw * * * [but] particular facts may show, in the rare
case, that a warrant could have been obtained and executed
significantly faster.” Machuca, 347 Or at 657. But it is not
for us to say that McCarthy supplanted Machuca. We are
an intermediate appellate court, bound by the precedent of
the Supreme Court. The court in McCarthy did not disavow
Machuca, and in fact cites it at one point. Further, conclud-
ing that McCarthy altered the Machuca analysis would be,
in essence, our resurrection of Moylett’s reasoning that,
in considering exigency for blood draws, “[t]he state was
still required to prove * * * that it could not have obtained
a search warrant without sacrificing the evidence[.]” 313
Or at 551. But that reasoning was explicitly disavowed in
Machuca.
Whatever resolution can be made of Moylett,
Machuca, and McCarthy is a task beyond this court. We are
compelled to follow Machuca, and the facts of this case are
difficult to differentiate from that precedent. Accordingly,
under Machuca, we cannot conclude that the trial court
erred in ruling that the warrantless blood draw here was
constitutional under Article I, section 9, and therefore prop-
erly denied defendant’s motion to suppress.
Turning to the Fourth Amendment, in its briefing,
the state acknowledges that that Josephine County’s lack
of electronic warrant procedures is “particularly relevant to
the Fourth Amendment analysis under Missouri v. McNeely.”
However, argues the state,
356 State v. Portulano
“After the suppression hearing in this case, the Court
decided Mitchell v. Wisconsin, 588 US ___, 139 S Ct 2525,
2531, 204 L Ed 2d 1040 (2019), which makes clear that the
exigency exception applies in situations such as this where
a crash has occurred and the defendant has been trans-
ported to the hospital. Thus, even if Oregon courts were
to adopt an analysis more similar to the Court’s approach
in McNeely (to the extent that it differs from Machuca) the
exigency exception applied here.”
We do not read Mitchell as does the state.
First, the state’s argument is a resurrection of the
per se exigency rationale that existed in the circuit split
post-Schmerber. In McNeely, the Court was explicit in reject-
ing any per se analysis in Fourth Amendment exigency.
Second, in Mitchell, the court carefully noted that it was
addressing a very narrow question and leaving others open.
“Nor do we settle whether the exigent-circumstances excep-
tion covers the specific facts of this case. Instead, we address
how the exception bears on the category of cases encom-
passed by the question on which we granted certiorari—
those involving unconscious drivers.”
Mitchell, 139 S Ct at 2534-35 (emphasis added). In Mitchell,
the Court was solely concerned with the state’s warrantless
blood draw on an unconscious driver where other less intru-
sive means, such as a breathalyzer, were unavailable, and
consent could not be obtained. This case does not involve
a warrantless blood draw from an unconscious driver. The
record reflects that defendant was conscious and refused
the blood draw at the time the blood draw was performed.
The general applicability of McNeely, and the totality of
the circumstances approach it articulated, is undisturbed
by the Court’s holding in Mitchell. And nothing in Mitchell
suggests that McNeely doesn’t apply when the state is faced
with a conscious suspect, merely because a traffic accident
occurred.
Accordingly, we are called upon to consider what, if
any, evidence the state brought forward to carry its burden
to establish exigency under the specific facts of this case,
and we do so by evaluating that evidence beginning with
the five nonexhaustive McNeely factors: (1) the availability
Cite as 320 Or App 335 (2022) 357
of a magistrate; (2) the need for police to attend to and inves-
tigate a car accident; (3) technology that enables police to
secure warrants quickly; (4) the procedures for obtaining a
warrant; and (5) other practical problems that prevent law
enforcement from obtaining a warrant within a timeframe
that still preserves the evidence. 569 US at 155-56, 164.
First, since 1973, the Oregon legislature has permit-
ted the use of telephonic and electronic technologies that expe-
dite the warrant application process. See ORS 133.545 (7),
(8)(a). Those statutes have been regularly updated, further
facilitating the ease of obtaining remote warrants. As the
Oregon Supreme Court noted, “it is possible for warrant
applications to be readily prepared and reviewed from sep-
arate locations and, if probable cause exists, for warrants to
be quickly issued.” McCarthy, 369 Or at 176.
Second, the officers in this case had the tools and
infrastructure available to them to utilize the legislatively
authorized remote warrant process. The officers had multi-
ple police vehicles onsite, all with onboard computers, radios,
and phones. The state offered no testimony that would indi-
cate the equipment was inoperable, nor that there were
problems with cellphone connections or data transmission.
Third, we know from this record that judicial offi-
cers were available in Josephine County to issue warrants
remotely. The state offered no testimony that they were
unable to contact a judicial officer.
Fourth, there was a vehicular accident to attend to,
and that clearly weighs in favor of exigency. However, that
aspect of the encounter is not dispositive, and we are cog-
nizant that there were at least three officers present on the
scene, as well as fire and medical personnel, and two tow
trucks. The state presented no evidence that management
of the accident scene required the undivided attention of all
officers present at all times. Further, as noted in McNeely,
the articulation of probable cause in preparing a warrant
affidavit in “contexts like drunk-driving investigations * * *
is simple.” 569 US at 142. As an example, here, probable
cause in support of a potential warrant could be articulated
in three sentences:
358 State v. Portulano
• Based on a tip from the suspect’s wife that he ‘was
at a * * * bar, [and] drives intoxicated on a regular
basis’, I parked my patrol car and observed defen-
dant leave the bar and get into his vehicle.
• The suspect attempted to flee from me, and his
vehicle eventually crashed.
• Upon extricating the suspect from the accident,
responding medical personnel smelled the strong
odor of alcohol on the suspect.
The state presented no evidence of why, under the
specific facts that comprise the totality of circumstances of
this case, preparing a warrant application was incompatible
with management of the accident scene. In noting this, we
do not suggest that it is always possible to pursue a warrant
while attending to an accident—far from it. We can read-
ily imagine a situation where safety demands that officers
direct their time and attention to other matters. But we can-
not infer this from silence. McNeely places the burden on the
state to establish exigency; exigency is not a given. Here, the
record fails to establish it.
Finally, and most critically, we note that on this
record, and largely uncontested by the state, Josephine
County police officers at the time of this stop were operating
as if there was a per se exigency rule for warrantless blood
draws, well after McNeely had established that there was
not. The record is replete with testimony that the same offi-
cers, when operating in Jackson County, would apply for a
warrant, but in Josephine County they would categorically
forgo a warrant and rely solely on dissipation exigency to
perform a warrantless blood draw. With over 40 years of
combined experience in Josephine County, the three officers
testified that, while on patrol in Josephine County, none of
them had ever applied for a search warrant to obtain a blood
draw following a refusal. In accord with that practice, on the
night of the arrest at issue here, despite the fact that numer-
ous officers were on the scene and available, the officers did
not even discuss applying for a search warrant. In short, at
the time of this stop, when it came to DUII investigations
in Josephine County, rather than exigency arising in the
Cite as 320 Or App 335 (2022) 359
regular course of business, exigency was the regular course
of business.
We are mindful of the challenges that remote
warrants can place on rural Oregon counties with limited
resources. Some Oregon counties share a single judicial offi-
cer who covers multiple counties and vast geographic areas.
We do not foreclose the possibility that a record could estab-
lish that the resource constraints of a county prevented
seeking a telephonic warrant, but such a record needs to be
made in the first instance for us to say that the state has
carried its burden.
The Fourth Amendment, as the Court articulated
its requirements in McNeely, requires the state to estab-
lish, under a totality of the circumstances approach, specific
facts establishing exigency. Here, the totality of the circum-
stances does not support the existence of an exigency on
this record. Accordingly, the warrantless seizure of defen-
dant’s blood was a violation of the Fourth and Fourteenth
Amendments to the United States Constitution, and the
trial court erred in failing to suppress the evidence.
Reversed and remanded.
LAGESEN, C. J., concurring.
I concur in the majority opinion in full. I write sep-
arately to highlight the problematic nature of the state’s
request that the court ratify a warrantless blood draw as
reasonable on the grounds of exigency under the circum-
stances present here, where the officers in the field made
no affirmative judgment about whether exigencies excused
obtaining a warrant because they adhered to an unconsti-
tutional practice of not seeking warrants for blood draws in
drunk-driving cases.
The Fourth Amendment states “[t]he right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures shall
not be violated.” The provision, by its terms, is a prohibi-
tion, a preventative measure. The goal is not after-the-fact
enforcement by the courts through a remedial scheme of sup-
pression of evidence. The goal is policing that accords with
360 State v. Portulano
constitutional constraints so that the people are, in fact,
“secure in their persons, houses, papers, and effects.” The
only way the Fourth Amendment can perform its intended
function is if officers in the field are aware of its constraints,
and consciously make decisions to search and seize in accor-
dance with those known constraints.
Of course, some decisions in the field must be made
quickly, without time to think through what the Fourth
Amendment requires. The decision to order a blood draw
is not one of them. Officers can’t search blood on their own.
They must find a doctor or phlebotomist, usually at a hos-
pital or medical facility, and ask for a blood draw. ORS
813.160(2) (“[O]nly a duly licensed physician or a person act-
ing under the direction or control of a duly licensed physi-
cian may withdraw blood or pierce human tissue.”). Because
blood draws take time, officers can take time to consider
the Fourth Amendment. In particular, officers have time
to think about whether particular exigent circumstances,
beyond the dissipation of alcohol, justify foregoing the war-
rant required by default under Missouri v. McNeely, 569 US
141, 133 S Ct 1552, 185 L Ed 2d 696 (2013).1 In drunk-driving
cases where McNeely’s warrant-preference rule applies, if
and only if officers take time to make a considered judg-
ment whether exigencies permit a departure from it, should
a subsequent court then entertain an argument that officers
reasonably determined that they were excused from seeking
a warrant. Any other approach would dilute the preventa-
tive force of the Fourth Amendment, leaving the people with
mere remedies for unconstitutional policing rather than the
intended protection from it.
Here, no one in the field made a considered judg-
ment that exigencies justified a departure from McNeely’s
1
Mitchell v. Wisconsin, 588 US ___, 139 S Ct 2525, 2531, 204 L Ed 2d 1040(2019), establishes a different rule for blood draws from a driver in a drunk-
driving case who is unconscious: “[W]hen a driver is unconscious, the general
rule is that a warrant is not needed.” Although the state typically bears the bur-
den of proving that an exception to the warrant requirement applies, Mitchell
appears to have altered that rule in the case of unconscious drivers, establishing
a default rule allowing for a warrantless blood draw, but permitting a defendant
“to show that his blood would not have been drawn if police had not been seeking
BAC information, and that police could not have reasonably judged that a war-
rant application would interfere with other pressing needs or duties.” Id. at ___,
139 S Ct at 2539.
Cite as 320 Or App 335 (2022) 361
default requirement of a warrant.2 On the contrary, in this
case, all officers appear to have been following the prevail-
ing practice in Josephine County at the time, under which
the dissipation of alcohol was treated as a per se exigency
that permitted a warrantless blood draw in any drunk-
driving case. As the majority opinion explains, that practice
is squarely unconstitutional under McNeely. And, as a result
of it, there is no indication that any officer considered seek-
ing a warrant, let alone determined that exigencies allowed
for a departure from McNeely’s default rule. Under those
circumstances, it is not the role of the court, after the fact,
to determine whether a warrantless blood draw might have
been reasonable, had officers been aware of McNeely’s con-
stitutional rule and made a conscious judgment about what
it required of them.
KAMINS, J., dissenting.
Josephine County’s perplexing decision to consider
dissipating blood alcohol content (BAC) a per se exigency
excusing its officers from following the warrant requirement
2
The dissenting opinion suggests that it is irrelevant for purposes of the
Fourth Amendment whether the officers in the field made a conscious judgment
that exigencies—apart from the dissipation of alcohol—permitted a departure
from McNeely’s warrant-preference rule. 320 Or App at 367-68 (Kamins, J., dis-
senting). But where the Court has declined to adopt a per se exigency rule, it has
indicated that the Fourth Amendment requires an officer to make an on-the-
ground assessment whether the particular circumstances allow the officer to
forego seeking a warrant. For example, in Lange v. California, 594 US ___, 141
S Ct 2011, 2024, 210 L Ed 2d 486 (2021), the Court recently rejected a request to
hold that the pursuit of a fleeing misdemeanant was a per se exigency allowing
for a warrantless entry into a home. In so doing, the Court held:
“The flight of a suspected misdemeanant does not always justify a war-
rantless entry into a home. An officer must consider all the circumstances in
a pursuit case to determine whether there is a law enforcement emergency. On
many occasions, the officer will have good reason to enter—to prevent immi-
nent harms of violence, destruction of evidence, or escape from the home. But
when the officer has time to get a warrant, he must do so—even though the
misdemeanant fled.”
Id. (emphasis added); see id. at 2028 (Roberts, C. J., concurring) (interpreting the
Court’s majority opinion to adopt a rule that
“requires that the officer: (1) stop and consider whether the suspect—if
apprehended—would be charged with a misdemeanor or a felony, and (2) tally
up other ‘exigencies’ that might be present or arise * * *, before (3) deciding
whether he can complete the arrest or must instead seek a warrant—one
that, in all likelihood, will not arrive for hours.”
(Emphasis in original.)).
362 State v. Portulano
has likely caused many situations that run afoul of the
Fourth Amendment. This, however, is not one of them.
At around 9:45 p.m., on a curvy rural road with no
shoulder, defendant crashed his car while evading police.
His speed exceeded 70 mph when he struck an embankment
and flipped his car over, coming to a stop upside down in a
ditch. Defendant was pinned inside the car and five to 10
emergency personnel and volunteers extricated him over the
course of 30 to 40 minutes. During that time, the officer on
the scene, who was later joined by two additional officers,
was occupied with closing the road, redirecting traffic, and
investigating the scene. After emergency personnel extri-
cated defendant from his car, he was placed in an ambu-
lance and taken to the hospital, a 10 to 20-minute drive,
for immediate medical attention. At 11:04 p.m., almost one
hour and 20 minutes after the car accident, a blood draw
was administered. Because those circumstances amount to
textbook exigency under decades of United States Supreme
Court Fourth Amendment jurisprudence, I would affirm the
conviction under both the Fourth Amendment to the United
States Constitution and Article I, section 9, of the Oregon
Constitution.
Sixty years ago, the United States Supreme Court—
in a remarkably similar case—concluded that dissipating
blood alcohol content, when combined with a serious acci-
dent requiring officer focus and time, amounts to an exi-
gency: “We are told that the percentage of alcohol in the
blood begins to diminish shortly after drinking stops, as the
body functions to eliminate it from the system. Particularly
in a case such as this, where time had to be taken to bring
the accused to a hospital and to investigate the scene of the
accident, there was no time to seek out a magistrate and
secure a warrant.” Schmerber v. California, 384 US 757, 770-
71, 86 S Ct 1826, 16 L Ed 2d 908 (1966). The court reasoned
that, because the officer “might reasonably have believed
that he was confronted with an emergency, in which the
delay necessary to obtain a warrant, under the circum-
stances, threatened the destruction of evidence,” exigent
circumstances existed. Id. at 770 (internal quotation marks
omitted). The Supreme Court continued to cite Schmerber
with approval in each recent case clarifying the analysis
Cite as 320 Or App 335 (2022) 363
under the Fourth Amendment. See Mitchell v. Wisconsin,
588 US ___, 139 S Ct 2525, 2537-38, 204 L Ed 2d 1040 (2019)
(analogizing the facts of the case before it to those in
Schmerber when assessing whether there were exigent cir-
cumstances); Missouri v. McNeely, 569 US 141, 150-51, 133
S Ct 1552, 185 L Ed 2d 696 (2013) (reasoning that the facts
in Schmerber made the warrantless blood draw reasonable).
The evolution of Supreme Court jurisprudence since
Schmerber has only solidified that the circumstances pres-
ent in both this case and Schmerber amount to an exigency.
As the majority observes, the question post-Schmerber
was whether dissipating BAC is itself a per se exigency, or
whether more was needed to establish exigency, such as a
car accident.1 Under the current analysis, “exigency exists
when (1) BAC evidence is dissipating and (2) some other
factor creates pressing health, safety, or law enforcement
needs that would take priority over a warrant application.”
Mitchell, 139 S Ct at 2537. The question before the court
in Mitchell, the most recent Supreme Court case to address
this topic, was whether the sole fact that the driver was
unconscious—without any of the pressing needs created by
an accident—could itself be that “other factor” such that it
combines with dissipating BAC to create an automatic exi-
gency. Id. at 2531. Relying on Schmerber and analogizing
to the situation of a car accident, the court answered that
question in the affirmative: “In Schmerber, the extra factor
giving rise to urgent needs that would only add to the delay
caused by a warrant application was a car accident; here
it is the driver’s unconsciousness.” Id. at 2537; see also id.
1
The majority posits that, after Schmerber, courts “split on whether exigency
was judged under a totality analysis, or whether the involvement of intoxicated
driving, or an accompanying accident, created a type of per se exigency in all
instances.” 320 Or App at 351. The split, however, was about whether dissipating
BAC amounts to a per se exigency—none of the cases the majority cites addressed
whether an “accompanying accident” amounts to a per se exigency. Indeed, both
the cases the majority cites which rejected a per se analysis concluded that the
accident involved created exigent circumstances. State v. Rodriguez, 2007 UT 15,
54-59, 156 P3d 771, 781 (2007) (concluding that the severity of the car accident
objectively demonstrated exigent circumstances and rejecting the assertion that
the “officers’ belief that warrantless blood extractions were routine dooms the
State’s quest for exigency” because the officer’s subjective assessment is largely
irrelevant); State v. Johnson, 744 NW2d 340, 344 (Iowa 2008) (concluding that the
same time-based considerations present in Schmerber were present in the case
before it given the circumstances of the accident).
364 State v. Portulano
at 2551 (Sotomayor, J., dissenting) (describing the Mitchell
decision as “permit[ting] officers to order a blood draw of an
unconscious person in all but the rarest cases, even when
there is ample time to obtain a warrant”).
In reaching that conclusion, the Mitchell majority
observed that many of the facts associated with an accident
will also be present when a driver is found unconscious (most
of which are present in the case before us). See id. at 2537-38
(facts justifying exigency include “that the suspect will have
to be rushed to the hospital or similar facility not just for
the blood test itself but for urgent medical care” and “might
require monitoring, positioning, and support on the way to
the hospital,” “that his blood may be drawn anyway, for diag-
nostic purposes, immediately on arrival,” and “that immedi-
ate medical treatment could delay (or otherwise distort the
results of) a blood draw conducted later, upon receipt of a
warrant, thus reducing its evidentiary value”). Particularly
relevant here, a consideration driving the court’s decision
was the risk that an unconscious driver might cause a car
accident—the classic “extra factor” found in Schmerber.
“Indeed, in many unconscious-driver cases, the exigency
will be more acute[.] * * * A driver so drunk as to lose con-
sciousness is quite likely to crash, especially if he passes
out before managing to park. And then the accident might
give officers a slew of urgent tasks beyond that of securing
(and working around) medical care for the suspect. Police
may have to ensure that others who are injured receive
prompt medical attention; they may have to provide first
aid themselves until medical personnel arrive at the scene.
In some cases, they may have to deal with fatalities. They
may have to preserve evidence at the scene and block or
redirect traffic to prevent further accidents. These press-
ing matters, too, would require responsible officers to put
off applying for a warrant, and that would only exacerbate
the delay—and imprecision—of any subsequent BAC test.”
Id. at 2538 (emphasis in original). The court thus con-
cluded, “Just as the ramifications of a car accident pushed
Schmerber over the line into exigency, so does the condition
of an unconscious driver bring his blood draw under the
exception. In such a case, as in Schmerber, an officer could
reasonably have believed that he was confronted with an
Cite as 320 Or App 335 (2022) 365
emergency.” Id. (internal quotation marks omitted). To put
it simply, deciding between pressing public safety needs and
pursuing a warrant “is just the kind of scenario for which
the exigency rule was born—just the kind of grim dilemma
it lives to dissolve.” Id.Here, as in Schmerber and extensively discussed in
Mitchell as the prototypical “other factor,” we actually have
a serious car accident. There is no need to speculate as to
whether the fears identified in Mitchell will play out—will
officers need to preserve evidence? Will the defendant need
to be taken to the hospital? Will the scene need to be investi-
gated? Will defendant’s injuries require immediate medical
treatment that may make it difficult to conduct the blood
draw at a later time? The answer to all those questions
is yes. In the one hour and 20 minutes between when the
accident occurred and the blood draw, officers were appro-
priately occupied with those pressing matters. The officers
were faced with the choice “between prioritizing a warrant
application, to the detriment of critical health and safety
needs, and delaying the warrant application, and thus the
BAC test, to the detriment of its evidentiary value and all
the compelling interests served by BAC limits.” Mitchell,
139 S Ct at 2538. For purposes of Fourth Amendment juris-
prudence, the officers chose correctly.
The majority acknowledges that a vehicular acci-
dent “weighs in favor of exigency” but observes that “[t]he
state presented no evidence of why, under the specific facts
that comprise the totality of circumstances of this case, pre-
paring a warrant application was incompatible with man-
agement of the accident scene.” 320 Or App at 358. However,
the state did present evidence of the many pressing needs
officers were addressing, evidence similar to that considered
in both Schmerber and Mitchell. Specifically, the initial offi-
cer who was by herself “for what felt like a long period of
time” had to break through a car window so she could com-
municate with defendant, set up traffic flares, correspond
with other units, and regulate traffic, all while running
back and forth to check on defendant’s well-being. Over the
course of the hour, two additional officers arrived. While
defendant was being extricated, the officers were focused
366 State v. Portulano
on investigating what they believed was a possible fatal-
ity, preserving roadway evidence, and redirecting traffic.
After defendant was extricated, two officers took five to 10
minutes to go to defendant’s house in an effort to deliver, in
person, the news to his wife of the severity of defendant’s
condition. Contrary to the majority’s contention, the record
is replete with evidence of the pressing needs to which offi-
cers were attending. A requirement of a showing of precisely
how those efforts were “incompatible” with applying for a
warrant is itself incompatible with the decision in Mitchell.
Finally, the majority considers critical in the analysis
that Josephine County has refused to adopt a remote war-
rant process and officers “were operating as if there was a
per se exigency rule.” 320 Or App at 358. I understand the
majority’s reaction to the county’s puzzling rejection of such
a process, particularly when that rejection, at least under
the majority’s decision, jeopardizes every single conviction
that stems from a search conducted under exigent circum-
stances. I disagree, however, that the failure to adopt such a
process compels the result here.
The testimony in the record indicates that it takes
close to two hours to obtain a warrant—even a telephonic
warrant in the counties that facilitate them. The majority’s
belief that the warrant application would be comprised of
a few quick sentences transmitted from patrol cars at the
scene readily equipped to send them, and that a judge would
be readily available to sign off on that application, is a goal
to which every county should aspire. It is not, however, a
reality supported by this record. 320 Or App at 356-58.2
2
The majority cites McNeely for the proposition that blood draw warrant
applications are “simple.” 320 Or App at 357. However, McNeely also recognized
that, although the availability of electronic warrants may speed up the process,
the process still can be more time-consuming than the situation envisioned by
the majority:
“We by no means claim that telecommunications innovations have, will, or
should eliminate all delay from the warrant-application process. Warrants
inevitably take some time for police officers or prosecutors to complete and
for magistrate judges to review. Telephonic and electronic warrants may still
require officers to follow time-consuming formalities designed to create an
adequate record[.] * * * And improvements in communications technology do
not guarantee that a magistrate judge will be available when an officer needs
a warrant after making a late-night arrest.”
McNeely, 569 US at 155.
Cite as 320 Or App 335 (2022) 367
Remote warrants are quicker than traditional warrants,
but they are not instantaneous. And, once again, Mitchell
addresses this very question: “[W]ith better technology, the
time required [to obtain a warrant] has shrunk, but it has
not disappeared. In the emergency scenarios created by
unconscious drivers, forcing police to put off other tasks for
even a relatively short period of time may have terrible col-
lateral costs. That is just what it means for these situations
to be emergencies.” Mitchell, 139 S Ct at 2539 (emphasis in
original).
The majority opinion essentially relies on the prem-
ise, flowing from McNeely, that the Fourth Amendment
requires that “[u]nless there is too little time to do so, police
officers must get a warrant before ordering a blood draw.”
Mitchell, 139 S Ct at 2544-45 (Sotomayor, J., dissenting).
However, as the Mitchell dissent laments, Mitchell’s two-
requirement approach represents a departure from that
premise. Id. at 2550. In any event, the record here supports
the finding that a reasonable officer would, in fact, believe
that there was not enough time to secure a warrant. See
State v. Ritz, 361 Or 781, 795, 399 P3d 421 (2017) (reasoning
that the state must establish that the “officers reasonably
believed that the delay caused by obtaining a warrant would
likely lead to the loss of evidence”).3
The concurrence further observes that “no one in
the field made a considered judgment that exigencies jus-
tified a departure from McNeely’s default requirement of a
warrant.” 320 Or App at 360-61 (Lagesen, C. J., concurring).
The Fourth Amendment, however, does not require that an
officer identify only legally appropriate reasons—many of
which, as recounted above, informed the officers’ judgment
here—that a situation is exigent for that situation to be,
in fact, exigent. An officer’s inclusion of an improper con-
sideration—such as the lack of a remote warrant policy—
in the exigency calculus does not preclude our duty to
3
We do not need to address the impact of Mitchell on the viability of McNeely,
because the facts here meet either standard. Notably, the Mitchell dissent praises
the Schmerber decision as one in which the facts associated with a car accident,
specifically the “delay caused by the investigation at the scene and the subse-
quent hospital trip” justified an exigent blood draw. Mitchell, 139 S Ct at 2544
(Sotomayor, J., dissenting). Those facts are, again, remarkably similar to the
ones present in this case.
368 State v. Portulano
review the totality of the circumstances of a case to deter-
mine whether exigency exists. See Lange v. California, ___
US ___, 141 S Ct 2011, 2018, 210 L Ed 2d 486 (2021) (“The
[exigent-circumstances] exception requires a court to exam-
ine whether an emergency justified a warrantless search in
each particular case.” (Internal quotation marks omitted.)).
Indeed, the “subjective motivation” of the officer is “irrele-
vant.” Brigham City, Utah v. Stuart, 547 US 398, 404, 126
S Ct 1943, 164 L Ed 2d 650 (2006) (“An action is reason-
able under the Fourth Amendment, regardless of the indi-
vidual officer’s state of mind, as long as the circumstances,
viewed objectively, justify the action.” (Emphasis in original;
internal quotation marks and brackets omitted.)); see also
Kentucky v. King, 563 US 452, 464, 131 S Ct 1849, 179 L Ed
2d 865 (2011) (“[W]e have never held, outside limited con-
texts such as an inventory search or administrative inspec-
tion * * * that an officer’s motive invalidates objectively jus-
tifiable behavior under the Fourth Amendment.” (Internal
quotation marks omitted.)).
Moreover, as the three opinions in this case demon-
strate, the question of how much Mitchell displaced McNeely’s
“default requirement” of a warrant in exigent circumstances
is something about which reasonable jurists can differ. 320
Or App at 360-61 (Lagesen, C. J., concurring). A police offi-
cer in the field at the scene of a potentially fatal car accident
is not required to reflect upon those nuances. Rather, under
Mitchell, the officer is charged with tending to the pressing
needs that take priority over obtaining a warrant. And, to
conduct an exigent search, the officer must “ ‘reasonably
have believed that he was confronted with an emergency.’ ”
Mitchell, 139 S Ct at 2538 (quoting Schmerber, 384 US at 770).
There is no dispute that the officers reasonably
believed that they were confronted with an emergency and
that that emergency met the two requirements identified in
Mitchell: (1) defendant’s BAC was dissipating and (2) other
pressing needs were present that would take priority over a
warrant application. Id. at 2537. As defendant’s challenge
arises under the Fourth Amendment, Supreme Court prec-
edent compels us to conclude that those circumstances cre-
ated an exigency that justified an exception to the warrant
requirement. I would affirm the conviction.