State v. lopez-lopez

Under Article I, section 9, of the Oregon Constitution subjecting a person to a breath test is a search and seizure that requires a warrant or an exception. Consent is an exception. In assessing voluntariness, you examine the totality of the circumstances to determine if a defendant’s consent was the of the defendant’s free will or was the result of express or implied coercion.

The state appealed a pre-trial motion to suppress evidence of a warrantless alcohol breathalyzer test. Defendant was arrested after police witnessed her speeding, and swerving, and also after failing a field sobriety test. After being arrested and taken to the police station Defendant had her rights set forth in the Implied Consent Report. Afterwards she gave her consent for a breathalyzer test. Defendant argued that her consent was coerced based on the arrest, the subsequent forcible removal of Defendant from the police car, and also Defendant claimed the implied consent warning regarding the consequences of refusal all coerced her into give her consent. The Court was not persuaded, and stated that in their holding in Moore II the reading of the Implied Consent Report was not coercive, and also the Court failed to find any reason why the forcible removal from the car could alter Defendants decision making ability, and finally Defendant could not argue the field sobriety test was coercive because she did it voluntarily. The Court also ruled the claim failed under the fourth amendment for the same reasons. Reversed and remanded.