State v. TaylorAnnotate this Case
650 P.2d 1090 (1982)
59 Or.App. 396
STATE of Oregon, Respondent, v. James Howard TAYLOR, Appellant.
No. M79-1040; CA 19398.
Court of Appeals of Oregon.
Petition for Reconsideration July 13, 1982.
Decided September 15, 1982.
Reconsideration Denied October 27, 1982.
Thomas C. Bernier, Roseburg, for petition.
Dave Frohnmayer, Atty. Gen., William F. Gary, Sol. Gen., and Virginia L. Linder, Asst. Atty. Gen., Salem, contra.
Before GILLETTE, P.J., JOSEPH, C.J.,[*] and YOUNG, J.
On Appellants Supplemental Petition for Reconsideration July 13, 1982.
Defendant filed a petition and supplemental petition for reconsideration of our former opinion, State v. Taylor, 57 Or. App. 553, 645 P.2d 547 (1982), which affirmed the *1091 judgment of conviction for driving while under the influence of intoxicants. We have granted the supplemental petition in which defendant contends that, on the basis of State v. Roberti, 293 Or. 59, 644 P.2d 1104, 293 Or. 236, 646 P.2d 1341 (1982), his motion to suppress should have been granted. The motion was to suppress"any evidence concerning the existence of or the contents of any audio tape taken at the scene of the stop of defendant, the audio tape itself and any evidence as to the questions asked of defendant and any answers given during or prior to the audio tape."
Our former opinion is withdrawn, and we reverse.
We held that the motion to suppress was properly denied on the basis of the first opinion in State v. Roberti, 293 Or. 59, 644 P.2d 1104, supra, in that "[d]efendant's admissions before he was arrested were made in an investigatory and not a custodial setting." 57 Or. App. at 559, 645 P.2d 547. After our opinion, the Supreme Court reconsidered its holding in Roberti and reversed. 293 Or. 236, 646 P.2d 1341 (1982). (Roberti II) Under Roberti II, we have held that "once an officer has decided to arrest a person, it is necessary to warn the person of his right to remain silent." See State v. Wells, 58 Or. App. 617, 650 P.2d 117 (1982).
The state filed a response to the supplemental petition in which it contends that, even under Roberti II, the motion to suppress was properly denied.
At a pretrial hearing on May 20, 1980, on defendant's motion to suppress, the arresting officer testified that, when he stopped and first encountered defendant, he was not under arrest. However, had defendant chosen to drive away, the officer would have stopped him again for attempting to elude a police officer. The officer testified that his initial observations of defendant's physical appearance indicated to him that he was "possibly" under the influence. The officer testified that he observed an odor of alcohol, a flushed face, bloodshot eyes, contracted pupils, a "swaying" balance and slurred speech. The officer testified that, after he made these observations, defendant was not free to leave the scene of the stop. Following the officer's subjective determination that defendant was not free to leave, defendant performed a series of "field sobriety tests," following which defendant was arrested. Soon after the arrest, defendant was read his Miranda rights. At the moment the officer decided the defendant was not free to leave the scene of the stop, he was significantly deprived of his freedom of action and was "in custody." State v. Roberti, supra, 293 Or. at 88-89, 644 P.2d 1104.
Our review of the officer's testimony satisfies us that his observation of defendant's physical appearance and condition were moments after the stop and before beginning the audio recording of defendant's statements. Accordingly, statements by defendant after he was in custody, and before the advice of his Miranda rights, were not admissible. Defendant's motion to suppress should have been granted. State v. Roberti, supra.
The state argues that the admission of defendant's statements, if error, was harmless. We do not agree. The officer's description of defendant's driving, his physical appearance, his lack of coordination and the breathalyzer result was powerful evidence of guilt. On the other hand, the tape recording included defendant's admission that he had attended a party and consumed beer. That admission could rise, in the mind of the jury, to the level of a confession. We cannot say, beyond a reasonable doubt, that defendant's statements could not have affected the result. See Chapman *1092 v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967); State v. Naylor, 291 Or. 191, 629 P.2d 1308 (1981).
Reversed and remanded for a new trial.NOTES
[*] Joseph, C.J., vice Roberts, J.
 We adhere to our former holding that the motion for speedy trial was properly denied.
 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 A.L.R.3d 974 (1966).
 This determination has not been free from difficulty. In addition to the poor quality of the recordings, earlier portions of the field investigation recording were apparently inadvertently erased at some point prior to trial.