State v. Kelly

The State has the burden of showing that, in the officer’s subjective belief, getting a warrant was unreasonable due to dissipating evidence and that belief is objectively reasonable, rooted in the officer’s “contemporaneous perspective based on information known or reasonably discernible in the totality of the circumstance.” Martinez-Alvarez, 245 Or. App. 369, 376, 263 P.3d 1091 (2011).

Defendant appealed a denial of his motion motion to suppress a blood draw obtained without a warrant after the hospital had already conducted a blood test to determine Defendant’s blood alcohol content (BAC).  Defendant argued no exigent circumstance was present when the officer obtained the second blood test because the hospital already captured his BAC. The State argued that the hospital’s blood test did not negate continued exigent circumstances to determine Defendant’s BAC. The State has the burden of showing that, in the officer’s subjective belief, getting a warrant was unreasonable due to dissipating evidence and that belief is objectively reasonable rooted on the officer’s “contemporaneous perspective based on information known or reasonably discernible in the totality of the circumstance.” State v.Martinez-Alvarez, 245 Or. App. 369, 376, 263 P.3d 1091 (2011). The Court held that the State did not prove the hospital’s blood test was insufficient for evidentiary reasons and thus there was no exigency present to sustain a second blood test. The Court reasoned that the officer knew of the first blood test and could not prove an officer in his position would have had the same evidentiary concerns. Reversed and remanded.