State v. True

An encounter with an officer cannot be considered a seizure unless the officer's actions would lead a reasonable person to believe that they were not free to leave. State v. Leiby, 293 Ore. App. 293 (Or. Ct. App. 2018). Regarding breath test validity, "[n]othing in the rule requires that a DUII suspect be allowed to rinse his mouth during the pre-test waiting period... the rule prohibits it." State v. Goddard, 87 Ore. App. 130, 131 (Or. Ct. App. 1987).

The Defendant appealed a conviction for driving under the influence of intoxicants (DUII). ORS 813.101(4). The Defendant-Appellant argued two points, that he was seized unlawfully and in violation of the state constitution when an officer approached and questioned him, and that the results of his breath test should be suppressed because it had not been performed within statutory and administrative regulations, as the defendant had some chewing tobacco residue in his mouth. ORS 813.160(1), OAR 257-030-0130. On the first point, the Court found that the officer engaged in a mere encounter with the Defendant upon approach and initial conversation which did not constitute a seizure until the officer observed the Defendant’s intoxication. These facts are contrasted with State v. Leiby, where the officer’s actions would lead a reasonable person to believe that they were not free to leave. 293 Ore. App. 293 (Or. Ct. App. 2018). Defendant’s second point that his breath test was improperly administered was unpersuasive as well. As established in State v. Goddard, “Nothing in the rule requires that a DUII suspect be allowed to rinse his mouth during the pre-test waiting period. In fact, the rule prohibits it.” 87 Ore. App. 130, 131 (Or. Ct. App. 1987). Residue in mouth does not interfere with breath test validity. AFFIRMED.