S057910, Opinion — State v. Machuca

644
Argued and submitted December 16, 2009, decision of Court of Appeals reversed,
judgment of circuit court affirmed February 11, 2010
STATE OF OREGON,
Petitioner on Review,
v.
THOMAS GREGORY MACHUCA,
Respondent on Review.
(CC 050647097; CAA133362; SC S057910)
227 P3d 729

Cite as 34 7 Or 644 (2010) 	645
CJS, Searches and Seizures§ 31.
En Banc
On review from the Court of Appeals.*
John R. Kroger, Attorney General, Salem, argued the
cause for respondent on review. With him on the briefs were
Joanna L. Jenkins, Assistant Attorney General, and Jerome
Lidz, Solicitor General.
Peter Gartlan, Chief Defender, Office of Public Defense
Services, Salem, argued the cause and filed the briefs for
respondent on review.
Kevin L. Mannix, Sarah Hunt Vasche, Ross A. Day, and
Tara Lawrence, Kevin L. Mannix, P. C., Salem, filed a brief
on behalf of amici curiae Oregon Anti-Crime Alliance and
Crime Victims United of Oregon.
Kevin M. Sali, Hoffman Angeli LLP, Portland, and John
Henry Hingson III, John Henry Hingson III P.C., Oregon
City, filed a brief on behalf of amici curiae ACLU Foundation
of Oregon, Inc.
DE MUNIZ, C. J.
The decision of the Court of Appeals is reversed. The judg-
ment of the circuit court is affirmed.
* Appeal from Multnomah County Circuit Court, Nely L. Johnson, Judge. 231
Or App 232, 218 P3d 145 (2009).

646 	State v. Machuca
DE MUNIZ, C. J.
The state seeks review of a Court of Appeals decision
that reversed and remanded defendant's DUii conviction.
The Court of Appeals concluded that the trial court had erro-
neously admitted test results of defendant's blood alcohol
content. The court reasoned that (1) defendant's consent to
have his blood drawn and tested had been unlawfully coerced
because he had been read the legal consequences for refusing
to consent to those procedures as required by Oregon's
implied consent statutes, ORS 813.095 to 813.136; and (2) the
dissipation of alcohol from defendant's bloodstream over time
did not, by itself, provide an alternative justification for a
warrantless blood draw conducted to secure evidence of
defendant's blood alcohol content. State v. Machuca, 231 Or
App 232, 218 P3d 145 (2009). We allowed the state's petition
for review, and, for the reasons that follow, we now reverse
the Court of Appeals decision.
We take the facts from the Court of Appeals opinion
and the record below:
"Defendant was involved in a single-car accident on
Naito Parkway in Portland; he suffered injuries and was
transported to the hospital emergency room facilities at
Oregon Health and Science University (OHSU). Officer
Oelke, the first officer on the scene, arrived at approxi-
mately 1:52 a.m. Officer Ladd arrived a few minutes later
and took over the investigation. By 2:10 a.m., Ladd con-
cluded that there was probable cause to believe that defen-
dant had committed the crime of DUii. Ladd then went to
OHSU to investigate further.
"After Ladd's arrival, hospital personnel allowed him to
enter the emergency room facilities through a locked entry
door, and he was directed by security staff to 'emergency
room two.' Defendant was alone in the room, 'lying on a hos-
pital bed receiving some care.' There was a very strong
smell of alcohol in the room. Defendant, snoring loudly and
in a deep sleep, was slow to wake. Ladd asked defendant
several questions to evaluate his comprehension. Ladd
explained why he was there and that defendant was under
arrest for DUii and reckless driving. He gave defendant
Miranda warnings and asked defendant questions from
the standard DUii Interview Report form. 	Defendant
responded to the questions slowly but directly. Ladd testi-
fied that defendant 'understood he'd bee[n] in a wreck,

Cite as 347 Or 644 (2010) 	647
knew where he was, he was in Portland at the hospital
***.So he was fully aware of his situation, surroundings
and why he was at the hospital.' Then Ladd read defendant
his Driver and Motor Vehicle Services Division 'implied
consent rights and consequences' and asked defendant ifhe
would like to take a blood test. Defendant agreed to take the
test, and Ladd summoned a nurse who administered the
test, extracting defendant's blood at 3:18 a.m.
"Defendant was charged with reckless driving and
DUII. He moved to suppress the evidence obtained by the
officer at the hospital, arguing that it was obtained in vio-
lation of Article I, section 9, of the Oregon Constitution and
the Fourth Amendment to the United States Constitution."
Machuca, 231 Or App at 234-37 (footnotes omitted; brackets
in original).
At the suppression hearing, the state argued that
the warrantless taking of defendant's blood did not violate
Article I, section 9, of the Oregon Constitution because
(1) defendant had consented to the blood draw, and (2) the
evanescent nature of blood alcohol evidence in the human
body had created an exigency that, combined with probable
cause to believe that defendant's blood contained evidence
pertaining to the crime of DUii, was sufficient under Article
I, section 9, to excuse any warrant requirement. As part of
the state's case, the forensic scientist who had tested defen-
dant's blood sample testified regarding the procedures used
to ascertain the 	sample's alcohol content. Among other
things, the scientist explained the concept of blood alcohol
dissipation:
"The longer it is between when the person last consumed
the alcohol and when the blood sample is drawn for analy-
sis, the longer that time period is, the lower the blood alco-
hol content will be. So if there's an initial blood draw at the
hospital for the hospital to do a testing-I mean, I don't
know the facts of this case, but sometimes it's another hour
or two later when they finally do the blood draw that is then
going to come to the Crime Lab."
When asked how the dissipation rate was assessed for testing
purposes, the scientist answered:
"Well, there's an average dissipation rate that we use in
the lab to estimate the difference, and so, you know, it
depends-it varies from person to person, but our average

648 	State v. Machuca
dissipation rate that we use for calculations is .015 per
hour. So that's how much lower the blood alcohol content
would get per hour, .015 percent."
The trial court denied defendant's motion to sup-
press the blood alcohol evidence. In its written opinion, the
trial court concluded:
"The state established its burden of proving, by a pre-
ponderance of the evidence, that the defendant's consent to
have his blood drawn and analyzed was given voluntarily
based on the totality of the circumstances. The state did not
meet its burden, however, with respect to the second prof-
fered exception to the warrant requirement, i.e., the exis-
tence of probable cause and exigent circumstances. More
specifically, the state failed to prove that the evidence it
sought would have been sacrificed by the time it would take
the officers to obtain a search warrant."
Machuca, 231 Or App at 237. Based on the trial court's rul-
ing, defendant entered a conditional plea of guilty, 1 reserving
the right to appeal the trial court's denial of his motion to
suppress.
On appeal, defendant contended that the trial court
had erred in refusing to suppress the results of the blood alco-
hol test.2 Among other things, defendant claimed that he had
agreed to the blood draw only after Officer Ladd had read
him the required Department of Motor Vehicles (DMV)
implied consent form setting out the consequences for refus-
ing to consent to having his blood drawn. 3 Defendant argued
1 ORS 135.335(3) provides:
"With the consent of the court and the state, a defendant may enter a con-
ditional plea of guilty or no contest reserving, in writing, the right, on appeal
from the judgment, to a review of an adverse determination of any specified
pretrial motion. A defendant who finally prevails on appeal may withdraw the
plea."
2 The blood sample that the hospital took for Officer Ladd revealed that,
approximately an hour and a half after defendant's accident, his blood-alcohol con-
tent was .20. ORS 813.0lO(l)(a) provides:
"A person commits the offense of driving while under the influence of
intoxicants ifthe person drives a vehicle while the person:
"(a) Has 0.08 percent or more by weight of alcohol in the blood of the per-
son as shown by chemical analysis of the breath or blood of the person made
under ORS 813.100, 813.140 or 813.150[.]"
3 Under ORS 813.100(1), persons operating motor vehicles on Oregon high-
ways are deemed to have implicitly given their consent to a chemical blood test to

Cite as 347 Or 644 (2010) 	649
that his decision to allow his blood to be taken and tested
therefore was not a free exercise of his will and could not be
viewed as a valid consent to a warrantless search and seizure
for purposes of Article I, section 9.
In an en bane decision, a divided Court of Appeals
agreed, citing this court's decision in State v. Newton, 291 Or
788, 636 P2d 393 (1981), overruled in part on other grounds
by State v. Spencer, 305 Or 59, 750 P2d 147 (1988):
"What is determinative in this context, however, is that the
consent was procured through a threat of economic harm
and loss of privileges. It was obtained only after defendant
was given the warnings required by ORS 813.130(2) about
the consequences of a refusal to allow a blood test. Under
State v. Newton, a consent to search obtained in that fash-
ion is coerced by the fear of adverse consequences and is
ineffective to excuse the requirement to obtain a search
warrant."
Machuca, 231 Or App at 240 (internal citation omitted). In
reaching that conclusion, the majority relied on the following
statement from Newton:
determine blood alcohol content if (1) they are receiving medical care in a health
care facility immediately after a motor vehicle accident, and (2) they have been
arrested for driving under the influence of an intoxicant. Before such a test is
administered, however, ORS 813.100(1) also requires that a person requested to
take the test be informed of the consequences ofrefusing to do so as set out in ORS
813.130. ORS 813.130(2) provides, in part:
"(a) Driving under the influence of intoxicants is a crime in Oregon, and
the person is subject to criminal penalties if a test under ORS 813.100 shows
that the person is under the influence of intoxicants. If the person refuses a
test or fails, evidence of the refusal or failure may also be offered against the
person.
"* * * * *
"(c) If the person refuses or fails a test under ORS 813.100, the person's
driving privileges will be suspended. The outcome of a criminal charge for driv-
ing under the influence of intoxicants will not affect the suspension. The sus-
pension will be substantially longer ifthe person refuses a test.
"(d) If the person refuses a test or fails a breath test under ORS 813.100
and has an Oregon driver license or permit, the license or permit will be taken
immediately and, unless the person does not currently have full valid driving
privileges, a temporary driving permit will be issued to the person.
"(e) If the person refuses a test under ORS 813.100, the person will not be
eligible for a hardship permit for at least 90 days, and possibly for one year,
depending on the person's driving record. The person may possibly qualify for
a hardship permit in 30 days if the person fails a test, depending on the per-
son's driving record."

650 	State v. Machuca
"Where a person's consent to a seizure is solicited, and the
person consents only after being warned that he will suffer
a substantial penalty if he refuses, the resulting consent
cannot be regarded as a free exercise of will. We therefore
hold that defendant's submission to the breath test was not
a voluntary consent to seizure because it was coerced."
291 Or at 801. According to the Court of Appeals' majority,
that statement, when considered together with the "views
expressed in the separate concurring and dissenting opinions
[in that case],'' announced the opinion of the court with
respect to the Article I, section 9, analysis used in that case.
Machuca, 231 Or App at 243 n 7. As a result, although the
majority expressed some misgivings regarding the abstract
correctness of Newton's coercion statement, it nevertheless
concluded that it was required to acknowledge and follow
that holding:
"[W]e cannot turn a blind eye, as the dissent suggests, to a
determination by a majority of the Supreme Court that is
labeled as a holding by the court and is relevant to the out-
come reached by that majority and that has not been distin-
guished, questioned, or implicitly overturned in subsequent
opinions of that court."
Id. at 243.
After holding that defendant's consent to the blood
draw had not been voluntary for purposes of Article I, section
9, the Court of Appeals' majority went on to examine whether
exigent circumstances justified the blood draw as a constitu-
tionally permissible warrantless search. Citing this court's
decision in State v. Moylett, 313 Or 540, 548-49, 836P2d1329
(1992), the Court of Appeals' majority opined that, in order to
draw defendant's blood without a warrant and not violate
Article I, section 9, the state was required to prove that:
(1) police authorities had probable cause to believe that
defendant's blood contained relevant evidence that would be
revealed once that blood was analyzed; (2) a warrant could
not have been obtained without sacrificing that evidence; and
(3) the extraction of defendant's blood was made promptly
once defendant had been taken to a place where the extrac-
tion could be made. Noting that the state had failed to pro-
vide any evidence demonstrating that the arresting officer

Cite as 347 Or 644 (2010) 	651
could not have quickly obtained a warrant to draw and test
defendant's blood, the majority held:
"[t]he state was not relieved of its duty to obtain a warrant
under Article I, section 9. The requirement to obtain a war-
rant is not excused by the mere fact that alcohol dissipates
in the bloodstream over time."
Machuca, 231 Or App at 247. The Court of Appeals therefore
concluded that the trial court erred in not suppressing the
blood alcohol test results.
Four Court of Appeals judges dissented. The dissent
opined that treating Newton's statement respecting coercion
as a binding precedent for purposes of interpreting the
implied consent law was erroneous because: (1) that analysis
was joined by only three members of this court; and (2) under
settled Oregon law, an accurate statement regarding the law-
ful consequences that may occur if consent to a legal search is
withheld is not coercive with respect to a defendant's decision
to allow such a search to take place. 4 231 Or App at 248-50
(Haselton, J., dissenting).
As noted, we allowed the state's petition for review
and now examine the Court of Appeals' Article I, section 9,
analysis regarding (1) the role that exigent circumstances
play in blood draws conducted under scenarios like the one at
issue here, and (2) defendant's participation in the blood
draw obtained in this case. 5
4 In support of that proposition, the Court of Appeals' dissent cited, among
other cases, this court's decision in State v. Hirsch, 267 Or 613, 518 P2d 649 (1974).
Machuca, 231 Or App at 249-50 (Haselton, J., dissenting). In Hirsch, the defendant
argued that his consent to a search was involuntary, because it was preceded by an
officer's statement that the officer would get a search warrant if necessary. This
court rejected the defendant's argument, relying on a statement in Chief Justice
O'Connell's dissent in State v. Douglas, 260 Or 60, 81, 488 P2d 1366 (1971):
" '* * *The officer's threat that he would obtain a warrant if defendant did
not consent to the search did not constitute the kind of coercion that renders a
search involuntary. Concededly such a threat may be coercive in the sense that
an accused would not have consented to the search in the absence of the threat.
But not all coercion inducing consent to a search is constitutionally impermis-
sible. If the officers threaten only to do what the law permits them to do, the
coercion that the threat may produce is not constitutionally objectionable.' "
Hirsch, 267 Or at 622.
5 We decline, however, to take up defendant's request-presented as partofhis
response to the state's petition for review-that we also review an issue that the
Court of Appeals decided against defendant; namely, whether police officers must

652 	State v. Machuca
We begin with the Court of Appeals' exigent circum-
stances analysis, focusing, in particular, on the Court of
Appeals' reliance on Moylett for the proposition that the state
was required to prove that the arresting officer could not
have obtained a warrant to draw defendant's blood without
inevitably sacrificing evidence of defendant's blood alcohol
content. The state argues that Moylett's exigency analysis is,
essentially, an anomaly-a holding that is at odds with the
case on which it is based-State v. Milligan, 304 Or 659, 748
P2d 130 (1988)-and that Moylett has not been followed since
it was announced. To determine the correctness of that asser-
tion, we turn to this court's previous decisions regarding the
evanescent nature of alcohol in the blood stream as an exi-
gent circumstance justifying a warrantless seizure of a per-
son's blood.
This court first recognized the "highly evanescent"
nature of blood alcohol content over 30 years ago in State v.
Heintz, 286 Or 239, 594 P2d 385 (1979). The defendant in
Heintz was found guilty of second-degree manslaughter after
the vehicle that he was driving left the road and crashed into
a power pole, killing the passenger riding with him. The
defendant's conviction was based, for the most part, on evi-
dence that the defendant was intoxicated at the time of the
accident, a determination that had turned primarily on evi-
dence derived from warrantless blood draws and subsequent
blood alcohol tests that police authorities had had medical
personnel conduct after the defendant was taken to a hospi-
tal. On review, this court concluded that the warrantless
blood draws did not violate Article I, section 9. Among the fac-
tors that the court cited in reaching that conclusion was the
observation that-due to the tendency of alcohol to rapidly
dissipate from the blood stream once alcohol consumption
has stopped-the warrantless blood draws had been neces-
sary to preserve that evidence. In that regard, the court
stated:
"Finally, it is also clear that alcohol in blood after drink-
ing is 'highly evanescent evidence' in that 'the percentage of
-------""---······
have either a warrant or consent before entering a criminal suspect's hospital
room. See ORAP 9.20(2) (party's questions raised in response to petition for review
are properly before the court, although the court need not address them).

Cite as 347 Or 644 (2010) 	653
alcohol in the blood begins to diminish shortly after drink-
ing stops, as the body functions to eliminate it from the sys-
tem.'"
Heintz, 286 Or at 248 (quoting Cupp v. Murphy, 412 US 291,
296, 93 S Ct 2000, 36 L Ed 2d 900 (1973), and Schmerber v.
California, 384 US 757, 770, 86 S Ct 1826, 16 L Ed 2d 908
(1966) (internal citations omitted)).
This court emphasized that same proposition nine
years later in State v. Milligan, 304 Or 659, 748 P2d 130
(1988). Like Heintz, Milligan involved a defendant who,
while intoxicated, crashed the car that he was driving, killing
his passenger. The defendant was convicted of negligent
homicide based, in part, on blood alcohol evidence obtained
without a warrant after police officers had samples of the
defendant's blood drawn at the hospital to which he was
taken after the accident. In concluding that the search of the
defendant's body and the seizure of his blood did not violate
Article I, section 9, this court began with the observation
that, at the time that the defendant was seized, the police
had probable cause to believe that the blood alcohol evidence
in his body was rapidly dissipating:
"When he was seized, the officers had probable cause to
believe that defendant was a vessel containing evidence of a
crime he had committed-evidence that was dissipating
with every breath he took. See State v. Heintz, supra, 286 Or
at 248, 249."
Milligan, 304 Or at 665. Citing State v. Matsen I Wilson, 287
Or 581, 601 P2d 784 (1979), the court then observed:
"Warrantless seizure and search under such circumstances
therefore is constitutionally justified, unless a warrant can
be obtained without sacrificing the evidence."
Millligan, 304 Or at 665-66 (citation omitted).
Matsen I Wilson, one of the principal decisions cited
in Milligan, was a case in which police had, through a pro-
tracted period of surveillance, developed probable cause to
search a residence that was being used for drug trafficking.
Police officers had not yet obtained a search warrant when
the individual they suspected of being the primary drug sup-
plier for the operation unexpectedly arrived at the house. At

654 	State v. Machuca
that point, police officers raided the house without a warrant.
On review, the state argued that the warrantless incursion
into the residence had been necessary to prevent a loss of evi-
dence. This court disagreed, observing:
"More specifically, the evidence does not support the
trial court's finding of exigent circumstances because the
state failed to prove that destruction of contraband or the
escape of the defendants was imminent. The fact that drugs
are usually of a destructible nature, and the fact that sus-
pects are likely to run out the back door when police enter
the 	front 	door[,] 	does 	not 	ipso 	facto 	create 	exigent
circumstances."
Matsen/Wilson, 287 Or at 587 (emphasis added).
Milligan, however, differed from Matsen I Wilson in
that the state had provided evidence underscoring exactly
the type of exigency that had necessitated a warrantless
blood draw from the defendant in that case. In Milligan, this
court explained how testimony before the trial court had
demonstrated the need to secure evidence of the defendant's
blood alcohol content before it had dissipated:
"In order to determine accurately the level of alcohol in
a suspect's blood at the time of the alleged crime, the police
must obtain an initial sample of the suspect's blood with as
little delay as possible. Testimony at the hearing on defen-
dant's motion to dismiss established that alcohol dissipa-
tion rates vary from person to person. To determine the dis-
sipation rate of any particular individual, it is necessary to
take more than one blood sample. A nurse at the hospital
testified that the 'usual practice' was to draw the blood sam-
ples one hour apart. Thus, the first blood sample must be
drawn early enough so that a measurable amount of alcohol
will still be present in the suspect's blood an hour later.
This evidence established that exigent circumstances existed
justifying the warrantless extraction of at least the initial
blood sample, so long as the extraction was made promptly
after the suspect was taken to a place where it could be
made. He was taken to such a place in this case. No warrant
was required for the initial testing of defendant's blood."
Milligan, 304 Or at 666 (emphasis added). Later, in a foot-
note, the court reiterated that the testimony in Milligan

Cite as 347 Or 644 (2010) 	655
relating to blood alcohol dissipation had been sufficient to
establish exigent circumstances in that case:
"The trial court held that no exigent circumstances
existed vis-a-vis the initial extraction of blood because no
evidence showed the amount of time that would have been
lost in obtaining a warrant. As we have already noted, this
legal conclusion asks too much of the evidence. From the
testimony the trial court accepted, exigent circumstances
existed 	justifying 	the 	initial, 	warrantless 	extraction
because alcohol was dissipating at some significant rate."
Id. at 666 n 5 (emphasis in original).
Milligan became, in turn, the foundation for the
court's subsequent decision in Moylett, albeit with a signifi-
cant alteration. In Moylett, the defendant had rear-ended a
stopped pickup truck. The defendant was hospitalized soon
after the collision, but not before the investigating police offi-
cer had noted the odor of alcohol on the defendant's breath,
along with other indicia of intoxication. Three blood samples
were taken from the defendant while at the hospital, the first
one drawn without a warrant. The trial court subsequently
suppressed the evidence obtained from the warrantless sam-
ple. This court affirmed that ruling. In doing so, the court
relied extensively on Milligan, citing that case for the propo-
sition that
"[i]n the context of an alcohol-related crime, there com-
monly will be an exigency because, as we already have
noted, a suspect is 'a vessel containing evidence of a crime
he had committed-evidence that [i]s dissipating with
every breath he t[akes].' "
Moylett, 313 Or at 550 (quoting Milligan, 304 Or at 665
(brackets in original)). The court also acknowledged that, as
in Milligan, there was evidence in the record before it that
"[t]he loss of alcohol evidence which creates the exigency
occurs because of the biological fact that the human body
metabolizes and expels alcohol."
Id. The court nevertheless determined that, in addition to
that evidence, Milligan's exigency analysis also required the
state to prove that a warrant could not have otherwise been
expeditiously obtained:

656 	State v. Machuca
"The exigency created by the dissipating evidence of
blood alcohol, however, did not make the blood sample sei-
zures per se reasonable under Article I, section 9. The state
was still required to prove, in order to justify the warrant-
less extraction of defendant's blood, that it could not have
obtained a search warrant 'without sacrificing the evidence'
and that the blood sample that it obtained had been
extracted 'promptly.' State v. Milligan, supra, 304 Or at
666."
Moylett, 313 Or at 550-51. Concluding that there was evi-
dence in the record that police officers could have quickly
obtained a warrant to test the first sample of the defendant's
blood, the court affirmed the trial court order suppressing
that evidence. Id. at 551.
After examining the cases set out above, we conclude
that the exigent circumstances analysis set out in Moylett,
which required the state to prove "that it could not have
obtained a search warrant without sacrificing the evidence,"
unnecessarily deviated from this court's established case law.
Until Moylett, the court's focus had been on the exigency cre-
ated by blood alcohol dissipation. Moylett, however, shifted
that focus away from the blood alcohol exigency itself and
onto the speed with which a warrant presumably could have
issued in a particular case. In our view, that shift was unsup-
ported by the cases that preceded it, and we disavow it now.
Milligan was not, and is not now, to the contrary. We
agree with the observation in Milligan that a "[w ]arrantless
seizure and search under such circumstances therefore is
constitutionally justified, unless a warrant can be obtained
without sacrificing the evidence." 304 Or at 665-66. Milligan,
however, illustrates that when probable cause to arrest for a
crime involving the blood alcohol content of the suspect is
combined with the undisputed evanescent nature of alcohol
in the blood, those facts are a sufficient basis to conclude that
a warrant could not have been obtained without sacrificing
that evidence.
It may be true, phenomenologically, that, among
such cases, there will be instances in which a warrant could
have been both obtained and executed in a timely fashion.
The mere possibility, however, that such situations may

Cite as 34 7 Or 644 (2010) 	657
occur from time to time does not justify ignoring the inescap-
able fact that, in every such case, evidence is disappearing
and minutes count. We therefore declare that, for purposes of
the Oregon Constitution, the evanescent nature of a suspect's
blood alcohol content is an exigent circumstance that will
ordinarily permit a warrantless blood draw of the kind taken
here. We do so, however, understanding that particular facts
may show, in the rare case, that a warrant could have been
obtained and executed significantly faster than the actual
process otherwise used under the circumstances. We antici-
pate that only in those rare cases will a warrantless blood
draw be unconstitutional.
Applying the foregoing rule, this is not the rare case.
Here, the state's evidence was sufficient to establish an exi-
gency justifying the warrantless seizure of defendant's blood
for constitutional purposes, and the Court of Appeals erred in
concluding otherwise.
As noted earlier, the state argued before the trial
court and the Court of Appeals that, in addition to probable
cause/exigent circumstances, the warrantless blood draw
also was permissible under Article I, section 9, because
defendant had voluntarily consented to it. In rejecting that
argument, the Court of Appeals' majority concluded that the
plurality opinion in State v. Newton, 291Or788, established
that advising a suspect of the "adverse legal consequences"
for refusing to permit a blood draw is coercive as a matter of
law, rendering a suspect's consent to a blood draw constitu-
tionally involuntary. According to the Court of Appeals'
majority:
''[A] consent to search obtained in that fashion is coerced by
the fear of adverse consequences and is ineffective to excuse
the requirement to obtain a search warrant."
Machuca, 231 Or App at 240. The state challenges that rul-
ing. However, because we have concluded that the state
established exigent circumstances justifying the warrantless
blood draw under the Oregon Constitution, we need not
determine whether defendant's consent was valid under
Article I, section 9, nor do we need to determine whether the
Court of Appeals correctly interpreted and relied on the plu-
rality opinion in Newton.

658 	State v. Machuca
Although the warrantless blood draw in this case did
not violate Article I, section 9, the legislature has neverthe-
less expressed a policy preference against physically compel-
ling blood draws or breath tests, by permitting a suspect to
refuse the test. ORS 813.100(2) provides:
"No chemical test of the person's breath or blood shall be
given, under subsection (1) of this section, to a person under
arrest for driving a motor vehicle while under the influence
of intoxicants in violation of ORS 813.010 or ofa municipal
ordinance, if the person refuses the request of a police offi-
cer to submit to the chemical test after the person has been
informed of consequences and rights as described under
ORS 813.130."
At the 	same time, 	however, the legislature has
imposed penalties for refusing the test, mandating longer
license suspensions for refusing a test than for failing it, and
permitting a refusal to be used as evidence against the per-
son in a civil or criminal court proceeding. ORS 813.130(2)(a);
ORS 813.310. As this court stated in State v. Spencer, 305 Or
59, 71, 750 P2d 147 (1988):
"[T]he statute's references to a driver's 'refusal' do not
evince a legislative concern that the driver make a volun-
tary and fully informed decision whether to submit to the
test. Consent being implied by law, a driver may not legally
refuse. A driver, however, can physically refuse to submit,
and the implied consent law, recognizing that practical
reality, 	forbids 	the 	use 	of physical 	force 	to 	compel
submission."
(Emphasis in original.) Thus, the legislative policy embodied
in the implied consent law was " 'designed to overcome the
possibility of physical resistance, despite legal consent, with-
out resort to physical compulsion' by imposing adverse legal
consequences on a refusal to submit to the test." Id. at 67
(quoting Newton, 291 Or at 793).
Here, defendant had been validly arrested for DUii
and was accurately informed of his rights and the prescribed
consequences that would flow from a refusal to consent to the
blood draw. To the extent that defendant's decision to permit
the blood draw was influenced, even significantly, by the

Cite as 34 7 Or 644 	659
statutory advice of rights and adverse consequences of refus-
ing the blood draw, the implied consent law operated exactly
as the legislature intended.
The decision of the Court of Appeals is reversed. The
judgment of the circuit court is affirmed.