State v. Girod

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FILED: September 21, 2011 IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Appellant, v. JOSHUA B. GIROD, aka Joshua Bradly Girod, Defendant-Respondent. Coos County Circuit Court 09CR0798 A144502 Martin E. Stone, Judge. Submitted on May 12, 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 Reversed and remanded. 1 PER CURIAM 2 In this prosecution for driving under the influence of intoxicants (DUII), the 3 state appeals from the trial court's suppression of a breath test result. In reliance on our 4 opinion in State v. Machuca, 231 Or App 232, 218 P3d 145 (2009), rev'd, 347 Or 644, 5 227 P3d 729 (2010), the trial court held that defendant had not voluntarily consented to 6 the test and that there were no exigent circumstances that would justify a warrantless 7 seizure of defendant's breath sample. We agree with the state that in light of the Supreme 8 Court's opinion reversing this court in Machuca and this court's opinion in State v. Allen, 9 234 Or App 363, 228 P3d 606 (2010), the trial court erred in excluding the breath test 10 results and the order suppressing the evidence must be reversed. 11 Officer Kirk stopped defendant for the offense of reckless driving, and it is 12 undisputed on appeal that he immediately thereafter developed probable cause to believe 13 that defendant had committed the offense of DUII. Under the Supreme Court's opinion in 14 Machuca, when an officer has probable cause to arrest a person for a crime involving the 15 blood alcohol content of the suspect, "the evanescent nature of a suspect's blood alcohol 16 content is an exigent circumstances that will ordinarily permit a warrantless blood 17 draw[.]" 347 Or at 657. In Allen, we applied the holding of Machuca to a breath test. 18 234 Or App at 364. We conclude for that reason that the trial court erred in granting 19 defendant's motion to suppress the breath test. 20 Reversed and remanded. 1

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