State v. Geyer ​

“Preservation requires that an issue must first be presented to the trial court in order to be considered on appeal . . . . [T]he preservation rule is a practical one, and close calls . . . inevitably will turn on whether, given the particular record of a case, the court concludes that the policies underlying the rule have been sufficiently served.” State v. Parkins, 346 Or. 333, 341, (2009) (internal quotation marks omitted).

Defendant appealed a judgment of conviction for DUII (ORS 813.010). Defendant assigned error to the trial court’s denial of his motion to suppress. On appeal, Defendant argued that the sobriety test and breath test administered by the officers on the scene should be suppressed because they followed an unlawful warrantless search of the defendant’s vehicle.  Defendant argued that the search was unlawful and warrantless because the officers opened his car door, without consent, while he was unconscious. The state argued that defendant did not raise preservation of the issue being reviewed. “Preservation requires that an issue must first be presented to the trial court in order to be considered on appeal . . . . [T]he preservation rule is a practical one, and close calls . . . inevitably will turn on whether, given the particular record of a case, the court concludes that the policies underlying the rule have been sufficiently served.” State v. Parkins, 346 Or. 333, 341, (2009) (internal quotation marks omitted). The Court of Appeals held that even though the defendant brought up the issue at the trial court, he didn’t give the state a fair opportunity to address the issue because it was addressed at the close of evidence on the motion to suppress. The Court further held the issue wasn’t raised in his written motion and was only a small part of a longer closing argument to the motion to suppress and, therefore, concluded there was no preservation of the issue. Affirmed.