STATE v. ADAMS (2026)

Defendant appeals a judgment of conviction for driving under the influence of intoxicants (DUII) and reckless driving. On appeal, he assigns error to the trial court's ruling denying his pretrial motion to suppress the results of a warrantless blood draw. He argues that a police officer violated the Fourth Amendment to the United States Constitution when he directed a paramedic to draw defendant's blood without an exigency or another exception to the warrant requirement. Additionally, defendant argues that, even if the blood draw did not violate the Fourth Amendment, Article I, section 9, of the Oregon Constitution required the officer to get a warrant before a criminologist tested the blood sample that the paramedic drew.¹ We conclude that the trial court correctly ruled, as a matter of federal law, that an exigency existed that justified drawing defendant's blood and that defendant failed to preserve the state constitutional issue that he raises for the first time on appeal.

We state the historical facts consistently with the trial court's express and implicit factual findings. State v. Ehly, 317 Or 66, 75, 854 P2d 421 (1993). At approximately 1:54 p.m., two Portland police officers received a report that a driver had crashed into a person's fence and was leaving the scene of the accident. The officers arrived a few minutes later and saw defendant walking away from his car, holding what appeared to be a bottle in a brown paper bag. When the officers caught up with defendant, they noticed that his speech was slurred, his eyes were bloodshot, and he was having difficulty maintaining his balance. Based on those observations, the officers arrested defendant for, among other things, DUII.

The officers took defendant to the East Precinct, which was nearby. They also sought to transfer the investigation to a traffic officer, McCarthy, who is an experienced DUII investigator and who teaches classes on the subject. They identified two reasons for asking McCarthy to complete the DUII investigation. They explained initially that a DUII investigation can be complex and can consume several hours. For that reason, the Portland Police Bureau developed a practice where a traffic officer would take over a DUII investigation, which both allows a more experienced officer to handle the DUII investigation and permits the arresting officers to return to patrolling the streets.² Additionally, in this case, it was near the end of the arresting officers’ shift and an appropriate time to hand off responsibility for the DUII investigation.

When defendant was placed under arrest, the traffic officers who ordinarily would have been available were investigating a fatal collision, and one of the arresting officers called McCarthy at 2:24 p.m. to see if he could report early for his 3:00 p.m. shift, come to the East Precinct, and take over the DUII investigation. McCarthy agreed to do so and was driving to the East Precinct, when a “dangerous driver” almost hit McCarthy's car. McCarthy stopped that driver. Once McCarthy observed that the driver was not impaired, the stop became relatively routine and lasted between 5 to 15 minutes.

McCarthy arrived at the East Precinct and spoke with defendant at some point before 3:39 p.m.³ After defendant acknowledged understanding his Miranda rights, McCarthy asked defendant to take three tests. The first was the horizontal gaze nystagmus test, a field sobriety test that McCarthy administered to make his own probable cause determination. (The arresting officers had not administered any field sobriety tests.) When defendant initially refused, McCarthy explained both the nature of the test and that defendant's refusal could be used against him in a future criminal or civil proceeding. After receiving that advice, defendant consented to the test, the results of which were consistent with the arresting officers’ determination that defendant had been driving under the influence of intoxicants.

McCarthy then began asking defendant a series of interview questions. After hearing the first question, defendant responded, “I need an attorney for anything you want to ask me.” McCarthy explained that defendant could contact an attorney by phone and that an attorney would be provided for him if he could not afford one. Defendant then responded, “I don't want to talk to an attorney.” Given those conflicting responses, McCarthy did not ask defendant any more interview questions; instead, he began reading defendant parts of what he referred to as the “implied consent combined report.”⁴ After providing defendant with information contained in that report, McCarthy asked him if he would take a breath test. Defendant replied, “No, I'll take a blood test.” That occurred at 4:08 p.m.

Immediately after stating that he would take a blood test, defendant said that he wanted to speak with an attorney. McCarthy accordingly provided defendant an opportunity to do so. He first read defendant a “notice of private communication.” He then gave defendant a phone book, defendant's phone, and time to speak privately with an attorney. Because defendant was having trouble reading the phone book, McCarthy helped him with that task. While defendant was talking with an attorney, McCarthy called American Medical Response and arranged for a paramedic to come to the East Precinct.

Defendant finished speaking with an attorney at approximately 4:50 p.m. When McCarthy asked defendant three minutes later whether he would take a blood test, defendant said “No.” McCarthy testified that, when defendant changed his mind and withdrew his consent to a blood draw at 4:53 p.m., he considered whether to apply for a warrant telephonically or whether the steady dissipation of blood alcohol and the additional time required to obtain a telephonic warrant created an exigency that excused the need for a warrant.

Among the specific circumstances that McCarthy considered in making that determination were the need to coordinate with the arresting officers to be sure the facts stated in the warrant affidavit were accurate, the Portland Police Bureau's recommendation that a draft affidavit be reviewed initially by a police sergeant to catch obvious issues, and a mandatory Bureau requirement that the affidavit be reviewed by the District Attorney's office before presenting it to a judge. He also observed that, although defendant had told him at 4:08 p.m. that he would take a blood test rather than a breath test, defendant changed his mind at 4:53 p.m. and withdrew his consent to take that test. McCarthy explained that the timing of defendant's decision was problematic because deputy district attorneys and judges typically were commuting home at that time and less likely to be immediately available to review initially and then consider a final warrant application.

The trial court credited McCarthy's testimony and found that, given the time that already had elapsed and the additional time necessary to secure a warrant, an exigency existed that excused the need to obtain a warrant before drawing defendant's blood.⁵ The trial court began by noting that, although the arresting officers were capable of conducting a DUII investigation, it served the public interest to have more experienced officers, if possible, make the determination whether a suspect had been driving under the influence. The court also noted that McCarthy was justified in stopping the dangerous driver who almost hit McCarthy's car and that the stop had not delayed McCarthy's arrival by more than 15 minutes.

In considering the criteria listed in State v. Portulano, 320 Or App 335, 351-52, 514 P3d 93 (2022), the trial court explained that McCarthy previously had applied for telephonic warrants and considered doing so here, that McCarthy's sergeant was unlikely to be available because he was involved in investigating a serious traffic accident,⁶ and that the additional time necessary to contact first a deputy district attorney and later a judge to review respectively the warrant affidavit and the completed application further increased the time entailed in applying for a warrant. The court also agreed with McCarthy's testimony that defendant's decision at 4:53 p.m. to withdraw his consent to a blood test increased the likelihood that the deputy district attorneys and judges would be commuting home and thus not be immediately available to review the warrant application. Considering those factors, the trial court expressly accepted McCarthy's testimony that applying for a warrant would add an extra 45 minutes to two hours to the three hours that already had elapsed since the officers first received a report at 1:54 p.m. that a driver had crashed into a person's yard. The trial court accordingly ruled that McCarthy reasonably determined that, in those circumstances, the continuing dissipation of alcohol in defendant's blood created an exigency that excused the need to obtain a warrant.

The relevant federal law is well established. The steady dissipation of alcohol in a person's blood does not create a per se exigency that excuses the need to obtain a search warrant before drawing a suspect's blood. Missouri v. McNeely, 569 US 141, 165, 133 S Ct 1552, 185 L Ed 2d 696 (2013). Rather, the question is whether the additional time it would take to apply for a warrant once a defendant refuses consent creates an exigency—a question that will vary with the “totality of the circumstances” in each case. Id. at 150, 152-53 (citing Schmerber v. California, 384 US 757, 86 S Ct 1826, 16 L Ed 2d 908 (1966)). The Court explained that, among other things that affect that calculus, are technological advances that “allow for the more expeditious processing of warrant applications.” Id. at 154. The Court observed, however, that it did not “claim that telecommunications innovations have, will, or should eliminate all delay from the warrant-application process.” Id. at 155. Among other things, the Court observed that warrants “inevitably take some time for police officers or prosecutors to complete,” and that, depending on when the police apply for a warrant, there may be issues contacting a magistrate judge to consider the warrant application. Id.

Before turning to the specific arguments that defendant raises on appeal, we note that this is not a case like Portulano where officers routinely “were operating as if there was a per se exigency rule for warrantless blood draws, well after McNeely had established that there was not.” 320 Or App at 358; see id. at 360-61 (Lagesen, C. J., concurring) (highlighting the absence of “a considered judgment [by the officers in the field] that exigencies justified a departure from McNeely’s default requirement of a warrant”). In this case, McCarthy started from the proposition that a warrant is required unless an exigency or other exception to the warrant requirement applies. And he explained why he determined that the additional time required to apply for and submit a warrant after defendant withdrew his consent to a blood draw created an exigency.

With that preface, we turn to the specific arguments that defendant raises on appeal. Defendant argues that, because the arresting officers could have conducted the DUII investigations themselves, it was not reasonable for them to transfer the case to a traffic officer. The trial court, however, explained that the arresting officers reasonably followed the practice of handing a DUII investigation off to an experienced traffic officer, and no one disputed that McCarthy was a skilled traffic officer. To be sure, the traffic officers who ordinarily would have been available were investigating a fatal traffic accident, and McCarthy encountered an unexpected traffic issue as he commuted to the East Precinct. But McNeely explained that reviewing courts should assess an officer's judgments “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” McNeely, 569 US at 158 n 7 (plurality opinion) (internal quotation marks omitted).⁷

Additionally, defendant argues that McCarthy should not have stopped the dangerous driver who almost hit his car as McCarthy was commuting to the East Precinct. McCarthy, however, witnessed (and was almost a victim of) the dangerous driver, and the trial court reasonably recognized that the situation necessitated McCarthy's attention. Defendant does not question the time that it took for McCarthy to process defendant at the station. And defendant legitimately exercised his right to speak with an attorney after telling McCarthy he would consent to a blood test but not a breath test. But, as a result of defendant's change of position, defendant did not tell McCarthy that he was withdrawing his consent to a blood draw until 4:53 p.m., after almost three hours had passed since the officers initially received a report that a driver had run off the road into a person's yard.

At that point, McCarthy had to decide whether the additional time required to obtain a warrant created an exigency that excused the need to apply for a warrant. Although defendant argues that McCarthy could have quickly obtained a warrant, the trial court credited McCarthy's testimony that it could have taken from 45 minutes to two hours to do so. Compare State v. Sanchez, 344 Or App 85, 89-90, 579 P3d 1070 (2025) (accepting the trial court's finding based on the officer's testimony it would have taken two to three hours to obtain a telephonic warrant), with Portulano, 320 Or App at 357-58 (explaining that the state had presented no evidence of any hurdles it faced in obtaining a telephonic warrant but instead relied on what, in effect, was a per se exigency). Following Sanchez, we agree with the trial court that McCarthy reasonably determined that the three hours that already had elapsed plus the additional time required to write and obtain a warrant created an exigency that excused the need to get a warrant.

Defendant raises a second issue. He argues that, once the paramedic drew his blood, no further dissipation of alcohol would occur. It follows, he contends, that Article I, section 9, required McCarthy to get a warrant before testing the blood sample that the paramedic drew. Defendant's argument faces two hurdles. First, the Oregon Supreme Court rejected almost the same argument 40 years ago. See State v. Owens, 302 Or 196, 207, 729 P2d 524 (1986) (Article I, section 9, does not require a warrant before chemically testing the contents of a lawfully seized transparent container to confirm a police officer's reasonable belief that it contains a controlled substance); see also State v. Langevin, 84 Or App 376, 733 P2d 1383 (1987) (Article I, section 9, does not require a warrant to test a lawfully drawn blood sample for blood alcohol content), aff'd, 304 Or 674, 748 P2d 139 (1988) (holding that the initial blood draw complied with Article I, section 9).

Second, defendant did not raise this issue when he moved to suppress. To be sure, defendant argued in support of his motion to suppress that Article I, section 9, and the Fourth Amendment prevented the police from directing a paramedic to draw his blood without a warrant or an exception to the warrant requirement. However, defendant did not argue that either the state or federal constitution required the police to obtain a warrant before testing a blood sample that the paramedic lawfully drew. And defendant does not argue on appeal that the trial court committed plain error in failing to raise that issue on its own motion. In light of Owens, that would be a hard argument to make. Having concluded that the trial court did not err in denying defendant's motion to suppress, we affirm the trial court's judgment of conviction.

Affirmed.

FOOTNOTES

1.   Defendant filed a pro se supplemental brief raising a series of issues and other concerns. We have considered each of the issues and other concerns that defendant raises in his supplemental brief and conclude that they do not provide any reason to reverse the trial court's judgment.

2.   Initially, the Portland Police Bureau had a policy requiring patrol officers to transfer DUII investigations to a traffic officer. When defendant's arrest occurred, staffing shortages had resulted in the policy being reduced to a practice that patrol officers followed, if possible.

3.   McCarthy did not remember exactly when he arrived at the East Precinct. Having refreshed his recollection, he testified that, at 3:39 p.m., he advised defendant of his Miranda rights a second time, which meant that McCarthy had arrived at the East Precinct sometime earlier.

4.   McCarthy did not describe the contents of the implied consent combined report, but his testimony suggests that the report provides a roadmap, along with standard warnings and advice, for officers to follow in requesting and administering breath and blood tests for DUII. Cf. State v. Rafeh, 361 Or 423, 426, 393 P3d 1155 (2017) (briefly discussing the implied consent combined report).

5.   Because McCarthy had already requested a paramedic to be available in case defendant did not withdraw his consent to a blood test, that consideration did not factor into the analysis.

6.   As we read the trial court's findings, the court concluded that the sergeant's unavailability excused the need for that level of review of the warrant affidavit, which left only the mandatory deputy district attorney's review.

7.   For the most part, Justice Sotomayor's decision in McNeely states the opinion of a majority of the Court; however, Parts II-C and III of her decision state an opinion only for a plurality. 569 US at 165 (Kennedy, J., concurring in part and concurring in the judgment); id. at 166-67 (Roberts, C. J., with whom Breyer and Alito, JJ., join, concurring in part and dissenting in part); id. at 176 (Thomas, J., dissenting). In Portulano, we cited Part II-C of Justice Sotomayor's decision as a persuasive explanation of federal law. See 320 Or App at 352 (following Part II-C of Justice Sotomayor's decision, which disagreed with the reasoning in the Chief Justice's opinion concurring in part and dissenting in part). We follow Portulano’s lead and treat footnote 7 to Part II-C as a persuasive statement of Fourth Amendment law.

KISTLER, S. J.