DocketNumber: 121154082; A153992
Citation Numbers: 271 Or. App. 558, 351 P.3d 797
Judges: Flynn, Haselton, Lagesen
Filed Date: 6/2/2015
Status: Precedential
Modified Date: 9/9/2022
Defendant appeals a judgment of conviction for driving under the influence of intoxicants (DUII), ORS 813.010. Prior to trial, defendant moved to suppress the evidence of intoxication, arguing that the evidence was obtained during an unlawful traffic stop, and the trial court denied the motion. During the suppression hearing, the trial court refused to allow into evidence a Final Order Dismissing Suspension for Refusing a Breath Test that was issued by the Driver and Motor Vehicle Services Division (DMV), which contains findings regarding the circumstances of the stop at issue in the motion to suppress. On appeal, defendant assigns error to the exclusion of that DMV order, emphasizing that the rules of evidence do not apply to preliminary hearings and that the administrative order was probative of the credibility of one of the arresting officers. We conclude that the trial court erred in refusing to admit the DMV order, but we also conclude that the error was harmless. Accordingly, we affirm.
Officers Ginnow and Fender arrested defendant for DUII based on observations they made after stopping defendant for speeding. Following the arrest, defendant refused to submit to a breath test, and the DMV held a hearing to determine if his driver’s license should be suspended for that refusal.
At the hearing on defendant’s motion to suppress, Fender testified that the road stretch contained speed bumps, and Ginnow again testified that defendant’s speed was at least 60 miles per hour. Defense counsel sought to admit a copy of the AL J’s order, arguing that it was relevant because “it contains statements that Officer Ginnow made.” The trial court disagreed, explaining, “I don’t believe the opinion of an administrative law judge has any relevance to the fact finding and decision-making I have to make here[.]” That is the ruling to which defendant assigns error, renewing his argument that the DMV order was relevant for impeachment because it “contained statements that Ginnow made during the DMV hearing which contradicted his testimony at the suppression hearing.”
Defendant first emphasizes — correctly—that the rules of evidence do not apply in suppression hearings. OEC 104(1) provides:
“Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege or the admissibility of evidence shall be determined by the court ***. In making its determination the court is not bound by the rules of evidence except those with respect to privileges.”
That exception is echoed by OEC 101(4)(a), which specifies that the evidence code (apart from the rules governing privileges) does not apply to “[t]he determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under [OEC 104].”
In excluding the DMV order, the trial court described the “opinion” of the ALJ as not relevant to the “fact finding and decision-making” task of the trial court at the suppression hearing. To the extent the trial court meant that the AL J’s “opinion” regarding credibility and probable cause had no bearing on how the trial court decided those issues, defendant does not disagree.
The state argues, however, that the error in this case was harmless, and we agree. In State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003), the Supreme Court explained that a defendant’s conviction must be affirmed, despite the error, if there is “little likelihood” that the error affected the verdict.
However, defendant introduced the same evidence through Ginnow’s admissions during cross-examination at the suppression hearing:
“[DEFENSE COUNSEL: At the license suspension hearing], you testified that there were no speed bumps between 79th and Crystal Springs and 72nd and Crystal Springs, correct?
“[GINNOW]: I didn’t recall at that time, yes. I’m not sure of my exact testimony. I’m sure you have it. But no, I did not remember there were speed bumps.
“[DEFENSE COUNSEL]: Okay. Well, did you tell the administrative law judge at first that there were no speed bumps and then — well, actually, you couldn’t remember?
“ [GINNOW]: I don’t recall.
“ [DEFENSE COUNSEL]: Did you receive a copy of the order from the administrative law judge?
“[GINNOW]: I did. I did.
“[DEFENSE COUNSEL]: Okay. And you had an opportunity to read through that. * * *.
“[GINNOW]: Yes.
“[DEFENSE COUNSEL]: And you’d agree that that was the finding of the administrative law judge.
“ [GINNOW]: Do I agree with the finding or do I agree that was the finding?
“[DEFENSE COUNSEL]: Do you agree that was the finding?
“[GINNOW]: Yes, ma’am.
“ [DEFENSE COUNSEL]: That you had said—
“[GINNOW]: Yes, ma’am.”
Affirmed.
ORS 813.100 provides that drivers in Oregon are “deemed to have given consent” to a breath test upon an arrest for DUII and that a driver’s driving privileges are subject to suspension if the driver refuses consent or has a blood alcohol level that constitutes being under the influence.
We granted defendant’s motion to add the DMV order to the appellate record as an “offer of proof only.”
OEC 101(4) provides, in pertinent part:
“[OEC 100 to 412] and [OEC 601 to 1008] do not apply in the following situations:
“(a) The determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under [OEC 104].”
The privilege rules are set out at OEC 503 to 514.
Defendant emphasized below that he was not suggesting the trial court was “collaterally estopped” from deciding the issue anew.
Davis interpreted Article VII (Amended), section 3, of the Oregon Constitution, which provides, in part:
“If the supreme court shall be of opinion, after consideration of all the matters thus submitted, that the judgment of the court appealed from was such as should have been rendered in the case, such judgment shall be affirmed, notwithstanding any error committed during the trial!.]”
ORS 138.230 similarly provides that, in criminal cases, “After hearing the appeal, the court shall give judgment, without regard to * * * defects or exceptions which do not affect the substantial rights of the parties.”