State v. Lopez-Lopez
Case # A154703
Full Text of Opinion: http://www.publications.ojd.state.or.us/docs/A154703.pdf
An Officer observed Defendant Lopez-Lopez speeding, swerving in her lane, and crossing into a bicycle lane. The Officer pulled Lopez-Lopez over and, upon approaching the car, noticed that Lopez-Lopez had bloodshot, watery eyes. There was also an odor of alcohol coming from the car. Suspecting that Lopez-Lopez was under the influence of intoxicants, the Officer asked her how much she had had to drink. Lopez-Lopez replied that she had had two beers and consented to perform field sobriety tests. She failed the tests and was arrested. Her breath test indicated a BAC of 0.14. At a suppression hearing, Lopez-Lopez moved to suppress the breath test evidence, arguing that the warrantless testing of her breath violated her Article I, Section 9 rights and the Fourth Amendment. Specifically, she contended that her consent to take the breath test was invalid because she consented only after she was informed of the consequences of refusing (suspension of driving privileges and a fine). She also contended that there was no exigency to justify taking her breath sample without a warrant. The trial court granted Lopez-Lopez’s motion, and the State now appeals.
The Court of Appeals notes that the Oregon Supreme Court has established that the reading of the implied consent warnings is not inherently coercive. Moreover, there was no evidence that physical force was used or threatened, that weapons were displayed, or that the atmosphere surrounding Lopez-Lopez’s consent was antagonistic or oppressive. Ultimately, the record demonstrates that defendant was involved in a “routine traffic stop” and a DUII investigation, during which Lopez-Lopez, after being read the implied consent warnings, voluntarily agreed to take a breath test. The Court of Appeals thus concludes that Lopez-Lopez’s Article I, Section 9 and Fourth Amendment rights were not violated. Accordingly, the trial court’s grant of the motion to suppress is reversed and remanded.