The parties do not dispute that finding.Instead, the parties dispute whether exigent circumstances justified the officers' warrantless search. The parties' arguments are largely framed around two recent decisions by this court: State v. Machuca , 347 Or. 644, 227 P.3d 729 (2010) and State v. Mazzola , 356 Or. 804, 345 P.3d 424 (2015). We therefore review those decisions before turning to the parties' arguments.
"Under that section, a search conducted without a warrant is deemed unreasonable unless it falls within one of the few specifically established and carefully delineated exceptions to the warrant requirement." State v. Mazzola , 356 Or. 804, 810, 345 P.3d 424 (2015) (internal quotation marks omitted). The burden is on the state to show that the circumstances existing at the time were sufficient to satisfy an exception.
"A warrantless search incident to arrest can be made for any of three purposes: (1) to protect a police officer's safety; (2) to prevent the destruction of evidence; or (3) to discover evidence of the crime of arrest." State v. Mazzola , 356 Or 804, 811, 345 P3d 424 (2015) (citing State v. Hoskinson , 320 Or 83, 86, 879 P2d 180 (1994) ).
See also State v. Nelson , 318 Or App 230, 231, 505 P.3d 1105 (2022) (Under Guzman/Heckler , an out-of-jurisdiction offense is a "statutory counterpart" of Oregon DUII only if the elements of the defendant's prior convictions are the close equivalent, or "match," the elements of the Oregon offense.). Defendant also argued that he had no previous conviction for an offense involving "impaired driving," ORS 813.215(1)(a)(B) ; see State v. Mazzola , 356 Or. 804, 813, 345 P.3d 424 (2015) (the impairment element of ORS 813.010(1) can be proved either by a blood alcohol content (BAC) level of .08 percent or by showing "that the driver was impaired to a perceptible degree while driving."). The trial court nonetheless denied defendant's motion for diversion under ORS 813.215(1)(a)(B) :
" A search without a warrant is unreasonable unless it " ‘fall[s] within one of the few specifically established exceptions to the warrant requirement.’ " State v. Mazzola , 356 Or. 804, 810, 345 P.3d 424 (2015) (quoting State v. Bridewell, 306 Or. 231, 235, 759 P.2d 1054 (1988) ). One of the established exceptions to the warrant requirement is a search incident to arrest.
A “search incident to lawful arrest” is a constitutionally sufficient exception and is authorized for three purposes: “(1) to protect a police officer's safety; (2) to prevent the destruction of evidence; or (3) to discover evidence of the crime of arrest.” State v. Mazzola, 356 Or. 804, 811, 345 P.3d 424 (2015) (citing State v. Hoskinson, 320 Or. 83, 86, 879 P.2d 180 (1994)). Although on appeal, the state contends that the search was authorized by the second and third purposes, the state did not contend in the proceedings below that the search was authorized to prevent the destruction of evidence, and, accordingly, we only address whether the search was authorized to discover evidence of the crimes for which defendant was arrested.
Warrantless entries and searches of premises are per se unreasonable unless they fall within one of the few specifically established and carefully delineated exceptions to the warrant requirement.”); see also State v. Mazzola, 356 Or. 804, 810, 345 P.3d 424 (2015) (same); State v. Kurokawa–Lasciak, 351 Or. 179, 186, 263 P.3d 336 (2011) (same); State v. Meharry, 342 Or. 173, 177, 149 P.3d 1155 (2006) (same); State v. Connally, 339 Or. 583, 587, 125 P.3d 1254 (2005) (same); State v. Snow, 337 Or. 219, 223, 94 P.3d 872 (2004) (same). This court has described consent to a search as an “exception” to the warrant requirement under Article I, section 9. See, e.g., State v. Weaver, 319 Or. 212, 219, 874 P.2d 1322 (1994).
"A warrantless search incident to arrest can be made for any of three purposes: (1) to protect a police officer’s safety; (2) to prevent the destruction of evidence; or (3) to discover evidence of the crime of arrest." State v. Mazzola , 356 Or. 804, 811, 345 P.3d 424 (2015) (citation omitted). "To pass constitutional muster, such a search must relate to a crime that there is probable cause to believe the arrestee has committed, and it must be reasonable in scope, time, and intensity."
Thus, to establish an alcohol-related DUII, the state must prove either that the driver had a blood-alcohol content of 0.08 percent or higher or that the driver was impaired to a perceptible degree while driving. State v. Mazzola , 356 Or. 804, 812-13, 345 P.3d 424 (2015) (citing ORS 813.010 (a)-(b) ). One method of detecting probable impairment from intoxicating liquor is through the application of FSTs. ORS 801.272.
That is, the walk-and-turn and one-leg-stand tests allow officers, and, through the officers' testimony, the jury, to spot commonly known signs of intoxication. See id. (citing State v. Clark , 286 Or. 33, 39-40, 593 P.2d 123 (1979), which took "judicial notice of a list of commonly known 'observable symptoms' or 'signs' of alcohol intoxication"); see also State v. Mazzola , 356 Or. 804, 818, 345 P.3d 424 (2015) (describing "[t]he rationale behind the admission in DUII cases of the results of FSTs" like the walk and turn and one-leg-stand tests as " 'test[ing] balance and divided attention, or the ability to perform multiple tasks simultaneously' " (quoting United States v. Horn , 185 F.Supp.2d 530, 558 (D Md 2002) (internal quotation marks omitted))). The jury will not perceive evidence describing the test performance as scientific because the evidence will relate to commonly known "observable symptoms" or "signs" of alcohol impairment that comport with jurors' own knowledge and experience and, perhaps, additional signs identified by the officer based on his or her practical expertise.