State v. McIntire

                                       328

 Argued and submitted February 2, affirmed September 27, 2023, petition for
               review denied February 1, 2024 (

)


                        STATE OF OREGON,
                         Plaintiff-Respondent,
                                   v.
                     BRIAN JAMES McINTIRE,
                         Defendant-Appellant.
                      Linn County Circuit Court
                        19CR48522; A175345
                                   

     Defendant appeals from a judgment of conviction for two counts of man-
slaughter, fourth-degree assault, and driving under the influence of intoxicants
(DUII). He assigns error to (1) the trial court’s denial of his motion in limine
to exclude the results of the field sobriety horizontal gaze nystagmus test; and
(2) the trial court’s denial of his motion to suppress evidence of his blood-alcohol
content obtained through an unwarranted forensic blood draw. Held: The Court of
Appeals rejected defendant’s first assignment of error as unpreserved. It rejected
the second assignment of error because the warrantless forensic blood draw was
justified by exigent circumstances, and the exigency was not eliminated by a
medical blood draw being performed at the same time.
    Affirmed.



  Thomas McHill, Judge. (Judgment entered January 19,
2021; Supplemental Judgment entered April 16, 2021)
    Brendan J. Kane, Judge. (Order entered May 4, 2021)
   Kyle Krohn, Deputy Public Defender, argued the cause
for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Joanna L. Jenkins, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Shorr, Presiding Judge, and Mooney, Judge, and
Pagan, Judge.
    SHORR, P. J.
    Affirmed.
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          SHORR, P. J.
         Defendant appeals from a judgment of conviction for
first-degree manslaughter, ORS 163.118 (Counts 1 and 2);
fourth-degree assault, ORS 163.160 (Count 4); and driv-
ing under the influence of intoxicants (DUII), ORS 813.010
(Count 5).1 On appeal, defendant raises two assignments of
error. His first assignment challenges the trial court’s denial
of his motion in limine to exclude the results of horizontal
gaze nystagmus (HGN) test. We conclude that defendant’s
argument is not preserved. Because defendant does not
request plain-error review, we do not consider whether the
requisites of plain-error review are satisfied or otherwise
engage in that review. In his second assignment of error,
defendant challenges the trial court’s denial of his motion
to suppress evidence of his blood-alcohol content (BAC)
obtained through an unwarranted forensic blood draw. We
conclude that the trial court did not err in determining that
the warrantless search and seizure of defendant’s blood was
justified by exigent circumstances. We affirm.
                                FACTS
         On the evening of July 23, 2019, defendant was
involved in a motor vehicle crash that resulted in the deaths
of two people. Evidence presented at trial showed that defen-
dant had consumed five 14-ounce beers during the four hours
before the crash. Sheriff Deputy Brent Hauke administered
field sobriety testing at the site of the crash, including the
HGN test, which involves moving a stimulus horizontally
while watching for involuntary jerking of the individual’s
eyes. Hauke observed six out of six signs of impairment on
the HGN test.
        Defendant was subsequently arrested and trans-
ported to the hospital. At that point, defendant declined to
consent to testing of his blood or urine, and Hauke decided
to perform a forensic blood draw based on exigent circum-
stances. A hospital phlebotomist was preparing to perform
a medical blood draw and agreed to perform both the med-
ical and forensic draws at the same time in order to avoid

    1
      Defendant was acquitted of a second charge of fourth-degree assault
(Count 3).
330                                         State v. McIntire

having to draw blood more than once. Hauke provided the
phlebotomist with a forensic kit, and she drew several vials
of blood for both medical and forensic purposes. Several
hours later, more than six hours after the crash, investi-
gators had obtained a warrant for another blood draw and
drew another sample.
         Each of the samples returned different results.
Testing by the Oregon State Police crime lab of the forensic
vial revealed a BAC of 0.058. The medical vial revealed a
BAC of 0.073 when tested by the hospital on the night of the
accident and 0.039 when tested weeks later by the crime lab.
The blood sample taken pursuant to the warrant showed
a BAC of zero. An expert medical witness testified that
the variations in the results from the medical and foren-
sic draws, despite being taken from defendant at the same
time, were due to the parts of the blood tested and the lack
of preservatives in the medical vial which led to the evapora-
tion of alcohol from the medical sample over the intervening
weeks. The same expert testified that, based on all of the
evidence available to him, he estimated defendant’s BAC at
the time of the accident to be between 0.091 and 0.139.
         The jury found defendant guilty of manslaughter,
assault, and DUII. This appeal followed.
                     HGN EVIDENCE
         In his first assignment of error, defendant chal-
lenges the trial court’s denial of his motion to exclude evi-
dence of the results of the HGN testing performed shortly
after the accident. He asserts that the state failed to meet
its burden to establish the scientific validity of the adminis-
tration of the test, and thus the trial court erred in admit-
ting the test results as scientific evidence. The state argues
that defendant failed to preserve the particular argument
he raises on appeal and, in any event, the trial court did
not err. Alternatively, the state argues that any error was
harmless. We conclude that defendant did not adequately
preserve the issue for our review.
         “No matter claimed as error will be considered on
appeal unless the claim of error was preserved in the lower
court[.]” ORAP 5.45(1). “[A] party must provide the trial
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court with an explanation of his or her objection that is spe-
cific enough to ensure that the court can identify its alleged
error with enough clarity to permit it to consider and correct
the error immediately[.]” State v. Wyatt, 

, 

 (2000). The policy reasons favoring preservation are
prudential in nature: it “gives a trial court the chance to
consider and rule on a contention, thereby possibly avoiding
an error altogether or correcting one already made, which
in turn may obviate the need for an appeal”; it also “ensures
fairness to an opposing party,” and “fosters full development
of the record[.]” Peeples v. Lampert, 

, 

 (2008).
         Defendant’s assignment of error arises out of the
court’s denial of his motion to exclude the results of the HGN
test. In his initial written motion to the trial court, defen-
dant argued that the HGN test results could not be admitted
as scientific evidence of the effects of alcohol because defen-
dant had suffered a head injury in the accident. Arguing
that head trauma can cause nystagmus independent of the
influence of alcohol, defendant asserted that the state could
not show that the results were scientifically relevant and
reliable, and thus did not meet the foundational require-
ments of State v. O’Key, 

, 

 (1995), to
be admitted as scientific evidence.2 In response, the state
argued that the presence or absence of a head injury was a
factual issue that must be argued to a factfinder and did not
create a foundational issue that had to be disproved before
the HGN test results were admissible. The state asserted
that, under O’Key, it was merely required to establish that
the officer who administered the test was qualified, that
the test was properly administered, and the results were
recorded accurately, all of which the state asserted it was
prepared to show.

     2
       In O’Key, the Supreme Court determined that HGN test evidence is scien-
tific evidence. 

. Applying a multifactor test, the Supreme Court con-
cluded that “the general proposition supporting HGN test evidence—that alcohol
consumption causes nystagmus—is scientifically valid.” 

. The Supreme
Court held that “subject to a foundational showing that the officer who adminis-
tered the test was properly qualified, the test was administered properly, and the
test results were recorded accurately, HGN test evidence is admissible in a DUII
proceeding to establish that a defendant was under the influence of intoxicating
liquor[.]” 

.
332                                            State v. McIntire

         A hearing was held on June 30, 2020, regarding the
various evidentiary issues raised in defendant’s motion. The
state called Deputy Hauke and questioned him about his
training and experience and how the HGN test is gener-
ally performed and what it shows. With respect to the day
in question, Hauke testified that he administered the test
consistent with his training and experience and that he
had observed six out of six clues of impairment. The state
then played the dash camera video of Hauke conducting the
HGN test on defendant and, after confirming that Hauke
had recently reviewed materials about how to perform the
test, further questioned him:
     “Q. Okay. And having reviewed the materials, could
  you spot any instance where you deviated from the course
  material or the training materials that you had provided?
      “A. The only deviation that’s possible is during the
  distinct and sustained nystagmus, they want you out for
  about four seconds, maybe I might have been just a little bit
  under at the maximum deviation, but—but other than that
  ...
     “Q. That notwithstanding, did you           nevertheless
  observe nystagmus at maximum deviation?
      “A. Yes, I did.”
On cross-examination, defense counsel had the following
exchange with Hauke:
     “Q. So, you testified that you may have been not out
  quite long enough on the sustained—distinct and sus-
  tained nystagmus.
      “A. On one of the passes through, yes.
     “Q. So that test is—essentially what you’re looking for
  is whether the nystagmus remains over a period of time,
  correct?
      “A.   Correct.
    “Q. Because everybody has a little bit of nystagmus
  when their eyes first get out to maximum deviation, correct?
      “A. I don’t think so.
      “Q. So in—
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      “A. I don’t know if everybody does.
      “Q. But it’s common?
      “A. I don’t know.
      “Q. And that’s not something that you remember from
   your training?
      “A.   That it’s common? No.”
Counsel then moved on to other topics, including defendant’s
head injury and emergency lights that were in the area that
could have impacted defendant’s eyes.
        In concluding arguments to the court, the state
asserted that it had met its foundational burden under
O’Key, because Hauke testified about his qualifications and
experience, that he administered the test properly, and that
he recorded the results accurately. In arguing that the test
was properly conducted, the state argued:
   “The only thing he said, that he admitted, was that he may
   have gone under four seconds at maximum deviation. I
   would argue that that does—that that does not invalidate
   the HGN results, particularly since he observed nystagmus
   prior—I mean he observed nystagmus prior to onset and
   that he continued to observe it at maximum deviation.
       “And I’d ask maybe you review the video. From my per-
   spective it looked like he held it there for a long time, but
   it’s hard to tell from the angle. But you can—you can see
   that he did—it wasn’t a cursory holding out there, it was—
   it was for a few seconds.
      “And so he did administer the test properly.”
Defense counsel argued that the foundational requirements
were not met due to Hauke’s lack of recall about his train-
ing and errors in the administration of the test, specifically
the presence of flashing lights and the angle and distance
at which Hauke held the stimulus. In sum, defense counsel
stated:
   “[I]t is clear, Judge, that at least important parts of this
   test were not administered per the training, and it’s even
   questionable that Deputy Hauke remembered all—all these
   parts. There’s so much that he says he didn’t remember and
   there’s really a lack of evidence that he was properly—or
334                                         State v. McIntire

   that he was trained according to what the Administrative
   Rules require.”
         In a written opinion, the court denied defendant’s
motion to exclude the HGN evidence. Noting that Hauke’s
qualification to perform the test was the primary issue
raised by defendant, the court concluded that Hauke had
received the proper training. The court further noted that
there was no evidence that the test results were not accu-
rately recorded and that Hauke had testified that he per-
formed the test consistently with his training. The court
also acknowledged that it had reviewed the various record-
ings of the incident. Finally, the court stated that defendant
had denied any symptoms of a brain injury at the time of the
testing and there was no evidence in the record that he had
suffered a concussion. For those reasons, the court denied
the motion to exclude the HGN results. The court did not
mention or resolve any issues regarding lights, the position-
ing of the stimulus, or the duration for which the officer held
the stimulus at maximum deviation.
          In his briefing before us, defendant’s challenge
focuses entirely on the requirement that the stimulus be
held for four seconds at maximum deviation. Based on
Hauke’s testimony that “maybe I might have been just a
little bit under at the maximum deviation” on one of the
passes, defendant asserts that the state failed to present
any evidence to support an inference that Hauke admin-
istered the test correctly. Defendant argues that the state
did not meet its burden to prove that the results were sci-
entifically valid, and the HGN evidence was therefore not
admissible. Defendant maintains that the issue is preserved
because he argued below that Hauke did not administer
the test according to his training, and the state specifically
addressed maximum deviation in its argument.
          The state argues that the issue was not properly
preserved. It notes that defendant raised other objections
to the foundation for the evidence, including the lights, the
positioning of the stimulus, defendant’s head injury, and the
officer’s training, but did not contend that the test was per-
formed incorrectly due to the length of time that Hauke held
the stimulus at maximum deviation. The state emphasizes
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that defendant argued his interpretation of the evidence,
urging the court to find that the test was not performed cor-
rectly as a factual matter, but notes that he never asserted
that the evidence was legally insufficient to support a find-
ing that the test was performed correctly.
         We agree with the state that defendant failed to
preserve the argument he now raises. Despite making argu-
ments below regarding how the trial court should view the
evidence and what factual conclusions it should draw, defen-
dant never raised an argument that the test results were
unreliable as a matter of law based on the officer’s failure to
hold the stimulus for the full four seconds at maximum devi-
ation. Defendant never maintained that the HGN evidence
was inadmissible or lacked a sufficient foundation because
there was no evidence that the officer held the stimulus for
a sufficient amount of time.
         “[T]here is a critical difference * * * between arguing
to the trial court as factfinder that it should be persuaded to
decide the case in a particular way and arguing to the trial
court as legal decisionmaker that only one outcome is permit-
ted as a matter of law.” State v. M. D. M., 

,

 (2022) (emphases in original). Had defendant
raised that argument below, the state would have had the
opportunity to meet the argument and respond to it, poten-
tially developing the record differently, and the trial court
would have had the opportunity to make specific findings and
resolve the matter in the first instance. See Peeples, 

 (discussing the underlying policies of preservation
rules, including fairness and efficiency). The claim of error
raised on appeal is unpreserved, and we reject it on that basis.
         When an issue was not preserved in the trial court,
we have discretion to consider a claim of plain error. ORAP
5.45(1). “However, we ordinarily will not proceed to the
question of plain error unless an appellant has explicitly
asked us to do so,” as “it is incumbent upon the appellant to
explain to us why an error satisfies the requisites of plain
error and, further, why we should exercise our discretion
to correct that error.” State v. Ardizzone, 

, 

, rev den, 

 (2015) (internal quota-
tion marks omitted). Defendant does not request plain-error
336                                         State v. McIntire

review in this case, and we therefore do not undertake that
analysis.
             WARRANTLESS BLOOD DRAW
         In his second assignment of error, defendant chal-
lenges the court’s denial of his motion to suppress the results
of the forensic blood draw. As noted above, after defendant
was transported to the hospital, a phlebotomist drew mul-
tiple vials of blood, some for medical purposes and some for
forensic purposes. In a pretrial motion, defendant argued
that the forensic draw, which was performed without a war-
rant, was an unlawful search and seizure under Article I,
section 9, of the Oregon Constitution. The trial court con-
cluded that the state had met its burden of demonstrating
exigent circumstances to permit the warrantless blood draw.
         We review the trial court’s denial of defendant’s
motion to suppress for errors of law. State v. Middleton, 

, 

 (2018). We are bound by the
trial court’s findings of fact if they are supported by evi-
dence in the record. 

         It is well-established that a forensic blood draw is
governed by search and seizure principles. State v. Kelly,

, 

 (2020). A warrantless
search or seizure is per se unreasonable unless it falls under
an exception to the warrant requirement, such as exigent
circumstances. 

 Ordinarily, a warrantless blood draw is
permitted when an individual has been legally seized for
DUII, due to the exigent circumstances of dissipation of
alcohol from the human body. 

. However, we have
recognized that, in some rare circumstances, that exigency
will not be present, and the state bears the burden of prov-
ing that an exigency existed. 

.
         In order to meet its burden of establishing that a
blood draw was justified by exigent circumstances, the state
must demonstrate that an officer’s subjective belief—that
exigent circumstances existed and thus the forensic draw
was needed to adequately preserve evidence of BAC—was
objectively reasonable based on the officer’s “contemporane-
ous perspective based on information known or reasonably
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discernible in the totality of the circumstances[.]” State v.
Martinez-Alvarez, 

, 

 (2011).
          While defendant’s pretrial motions were pending,
we decided Kelly, which involved an investigator obtaining a
forensic blood sample when a medical blood draw and test-
ing had already been performed. 

. In that
case, the hospital had already drawn the defendant’s blood
and performed blood-alcohol analysis on it and informed
the investigating officer that BAC results were available.

 The officer asked the hospital staff not to tell him the
results, and requested a forensic draw be performed. 

 The
officer testified at a pretrial hearing that he did not attempt
to get a warrant first because it would have taken several
hours. 

 He subsequently obtained a warrant to have the
blood tested. 

 The defendant challenged the admissibility
of the forensic draw, and we concluded that the state had
not met its burden to establish that a second blood draw
was justified by exigent circumstances. 

. Though
the state argued on appeal that medical and forensic draws
have different levels of reliability and evidentiary value, we
noted that the state did not offer evidence before the trial
court on those issues. The record contained no evidence that
an objectively reasonable officer in that investigator’s posi-
tion would have been concerned that the medical blood draw
or test results, which were available in the moment, would
not be reliable or available as evidence at trial and the state
did not offer evidence of any evidentiary problems with a
medical draw, such as how the draws might differ scientifi-
cally or any issues with foundation for the medical draw. 

.
         In the present matter, the trial court found that
this case was factually distinguishable from Kelly in some
important ways, particularly with respect to the develop-
ment of the record as to the officer’s subjective reasoning in
seeking the forensic sample and the objective differences in
testing, preservation, and handling of the samples for med-
ical versus forensic purposes. The court concluded that the
state had satisfied its burden of proving that an exigency
existed.
338                                                     State v. McIntire

          On appeal, defendant argues that exigent circum-
stances did not justify the warrantless forensic blood draw.
Analogizing to Kelly, he asserts that the medical draw
would have been sufficient to preserve the BAC evidence
and that the state failed to meet its burden to show that the
officer reasonably believed that the medical draw would not
be reliable or admissible.3 The state argues that this case is
distinguishable from Kelly, both factually and in terms of
record development, and that the trial court therefore did
not err in concluding that the circumstances did not war-
rant suppression.
          We conclude that the trial court did not err by
denying defendant’s motion to suppress. As noted above,
we review the trial court’s denial of the motion to suppress
for errors of law, but we are bound by the trial court’s find-
ings of fact if they are supported by evidence in the record.
Middleton, 

. The trial court made factual
findings regarding the officer’s reasons for believing that the
exigent draw was required as opposed to relying on the hos-
pital draw, including concerns about chain of custody, pro-
tocols for preservation, and security of the samples; assur-
ances that the proper testing would be done on the forensic
samples and lack of knowledge about what testing would
be performed on the medical samples; knowledge that the
forensic draw would be performed following a swab of defen-
dant’s arm with iodine rather than alcohol; knowledge about
what preservatives or other additives would be included in
the forensic samples; and the importance of preservation of
forensic samples for the possibility of replication of testing if
needed. The court further noted that at the time the forensic
draw was performed, no testing had been done on the med-
ical samples, unlike in Kelly. Additionally, a forensic expert
testified that the variation in results from the crime lab’s
testing of the leftover medical sample when compared to the
hospital’s testing of the same sample was due to the lack of
preservatives in the vial.
    3
      We understand defendant to contend that the state failed to meet its bur-
den to prove exigent circumstances because the state failed to demonstrate that
the medical blood draw was insufficient and a separate warrantless forensic
blood draw was therefore needed. We do not understand defendant to contend
that the state could have obtained a warrant for a blood draw in time to obviate
the exigent circumstances due to the dissipating BAC in defendant’s blood.
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         All of the trial court’s factual findings are supported
by evidence in the record. The facts developed at multiple
hearings demonstrate that the officer’s subjective belief that
a forensic draw was needed to adequately preserve the BAC
evidence was objectively reasonable, in light of the totality
of the circumstances. Therefore, the state met its burden of
demonstrating that exigent circumstances existed to justify
the warrantless blood draw. The trial court did not err in
denying defendant’s motion to suppress.
        Affirmed.