State v. Brown

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FILED: September 08, 2011 IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Appellant, v. PAUL RAY BROWN, Defendant-Respondent. Multnomah County Circuit Court 090749120 A144567 Stephen K. Bushong, Judge. Argued and submitted on July 28, 2011. Joanna L. Jenkins, Assistant Attorney General, argued the cause for appellant. With her on the brief were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General. Ryan T. O'Connor, Senior Deputy Public Defender, argued the cause for respondent. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services. Before Haselton, Presiding Judge, and Armstrong, Judge, and Sercombe, Judge. PER CURIAM Reversed and remanded. 1 PER CURIAM 2 In this prosecution for driving under the influence of intoxicants, ORS 3 813.010, the state appeals a pretrial order granting defendant's motion to suppress the 4 results of his breath test, ORS 138.060(1)(c). A detailed statement of facts would not 5 benefit the bench, the bar, or the public. The trial court's ruling was predicated on our 6 decision in State v. Machuca, 231 Or App 232, 218 P3d 145 (2009) (Machuca I). After 7 the trial court granted defendant's motion, the Supreme Court reversed our decision in 8 Machuca I, holding that, 9 10 11 12 13 14 15 16 "for purposes 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 circumstances. We anticipate that only in those rare cases will a warrantless blood draw be unconstitutional." 17 State v. Machuca, 347 Or 644, 657, 227 P3d 729 (2010) (Machuca II) (emphasis in 18 original). 19 This case is materially indistinguishable from Machuca. Accordingly, 20 under the operative principles that the Supreme Court explained in Machuca II, the trial 21 court erred in granting the motion to suppress. 22 Reversed and remanded. 1

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