Challenges to DUII / controlled substances drug testing results.

After State v. Machuca, it’s clear that the police do not need a warrant in order to take a breath sample.  The Supremes ruled that the dissipation of alcohol within the body constituted an exigent circumstance excusing the warrant requirements.

However, with respect to detection of controlled substances in the blood or urine, the dissipation argument factually does not hold.  Keeping in mind that the state need only show the mere presence of a controlled substance (quantitative analysis simply does not matter) in order to lay the foundation for a police drug recognition expert to testify that the defendant was under the influence of the controlled substance, the presence of the controlled substance can be detected for days, weeks, even months.

With that in mind, it’s important to remember that the Supreme Court specifically declined to reach the coerced consent issue (reading of the implied rights and consequences of a refusal cause any consent to urinalysis of blood testing for controlled substances to be coerced).  Although there are some particularly unhelpful comments made by the Supreme Court in dicta, the issue is still open.  In short, if dissipation (or lack thereof in this case) does not provide a basis for exigent circumstances, we’re certainly still free to argue that any consent is coerced by the reading of the implied rights and consequences that is certainly involved in any of these types of cases.  (See new case State v. Hayes, Oregon Court of Appeals No. A135729 (April 15, 2010).  Following Machuca, exigent circumstances excuse the need to seek a warrant, so it didn’t matter whether the consent was coerced or not.)  The holding is also noteworthy (unfortunately for persons charged with DUII) that a violation of the implied rights and consequences statute is not a basis for suppression under ORS 136.432 (an appeal of this ruling would still be viable even under Machuca).