258 January 24, 2024 No. 35

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

SHAYNA LYNN HAMILTON,

Defendant-Appellant.

Jackson County Circuit Court

18CR31535; A172776

Laura A. Cromwell, Judge.

Argued and submitted June 21, 2022.

Francis C. Gieringer, 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.

Christopher A. Perdue, Assistant Attorney General, 

argued the cause for respondent. Also on the brief were Ellen 

F. Rosenblum, Attorney General, and Benjamin Gutman, 

Solicitor General.

Before Ortega, Presiding Judge, and Powers, Judge, and 

Hellman, Judge.

POWERS, J.

Convictions on Counts 1 and 3 reversed and remanded; 

remanded for resentencing; otherwise affirmed.
Cite as 330 Or App 258 (2024) 259
260 State v. Hamilton

POWERS, J.

Defendant appeals from a judgment of conviction 

for two counts of driving under the influence of intoxicants 

(DUII), ORS 813.010 (Counts 1 and 3), and two counts of 

reckless driving, ORS 811.140 (Counts 2 and 4), arising 

out of two traffic stops. Among her contentions advanced 

on appeal, she argues that the trial court erred by denying 

her motion to suppress evidence of her refusals to perform 

field sobriety tests (FSTs) during both stops. We conclude 

that, under State v. Banks, 364 Or 332, 434 P3d 361 (2019), 

refusals to perform FSTs—like refusals to perform breath 

tests—may be admitted as evidence of guilt if the state 

proves that law enforcement’s requests to perform the tests 

could be understood only as a request to submit to the physical act, and not as a request that defendant provide constitutionally significant consent to the tests. Here, the state 

did not meet that burden, and therefore we conclude that 

the trial court erred in admitting evidence of defendant’s 

refusals to participate in the FSTs. We further summarily 

reject all but one of defendant’s remaining assignments of 

error. Accordingly, we reverse and remand.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Standard of Review

In reviewing the denial of a motion to suppress, we 

accept the trial court’s factual findings that are supported 

by the evidence and determine whether the court correctly 

applied legal principles to those facts. State v. Brandes, 317 

Or App 672, 674, 506 P3d 431 (2022). In so doing, we limit 

our discussion of the facts to the record that was developed 

at the pretrial hearing. Id. We begin with the undisputed 

background facts for both stops, which were presented at 

the hearing on defendant’s motion to suppress and included 

video footage from the stopping deputies’ body cameras on 

October 21, 2017, and January 6, 2018.1

1 Defendant was also charged with two counts of unlawful possession of a 

controlled substance related to the January 2018 stop. The state dismissed those 

charges, as well as an additional charge of DUII on a later date in January 2018. 

The jury acquitted her of additional charges of DUII and reckless driving that 

were based on an April 2018 encounter. 
Cite as 330 Or App 258 (2024) 261

B. October 21, 2017, Incident

Around midnight on October 21, 2017, Deputy 

Brown was dispatched to a report of a white Toyota Camry 

that was weaving back and forth and failing to stay in its 

lane. When Brown located the vehicle, he saw it cross into 

the opposite lane by about four feet before quickly moving 

back into its own lane. Brown initiated a traffic stop.

After the Camry pulled over, Brown approached the 

vehicle, which defendant was driving. Although it was not 

raining at the time, the windshield wipers were moving at 

full speed, and defendant struggled to shut them off and 

find the switch to roll down her window. Brown explained 

to defendant that he saw her go over the double yellow line 

and that he observed that she was alternately braking and 

accelerating. He asked if there was a reason that she was 

driving that way, and defendant responded that she was 

driving home from work and was exhausted from working a 

long day.

Brown told defendant that she was called in as an 

impaired driver and asked if defendant was on medications 

or had taken any drugs. Defendant said no. He told defendant that he had “concerns about [her] ability to safely operate a vehicle” and then asked, “So what I would like to do is 

I would like to administer some standardized field sobriety 

tests to make sure that you’re safe to drive back to Dixie. 

Okay? Is that something that you would voluntarily consent 

to doing tonight?” Defendant refused. She told Brown that 

she had worked a long day with no breaks and had not eaten 

that day. Brown responded, “But here’s the deal, if you’re 

just exhausted * ** if you consented to the field sobriety 

tests and I was to administer those and you don’t show indicators of impairment, * * * exhaustion is not an intoxicant 

that I’m looking for. * ** And if you’re not impaired, you’re 

not impaired and you’re going to be able to drive home.” 

Brown and defendant continued to discuss her driving, and 

Brown asked again, “So I’m going to ask you one more time. 

I would like to administer some standardized field sobriety 

tests to make sure that you’re good to go.” Defendant replied 

that she was not willing to take any sobriety tests.
262 State v. Hamilton

Brown read defendant her Miranda rights and provided the so-called Rohrs admonishment, which is derived 

from State v. Rohrs, 157 Or App 494, 499, 970 P2d 272 

(1998), aff’d, 333 Or 397 (2002). Brown told defendant, “So 

I’m going to read you the Rohrs admonishment. I’m going 

to ask you to submit to a purely physical field sobriety test. 

None of these tests I will ask you to perform will require 

you to reveal your thoughts, beliefs, or state of mind.” Brown 

described the horizontal gaze nystagmus test, the walk-andturn test, and the one-leg stand test. After each description, 

he asked, “Are you willing to perform this test?” and each 

time defendant refused. He asked, “Are you willing to perform any tests that I’m going to ask you to perform tonight?” 

and defendant refused. Brown then arrested defendant.

Deputies searched defendant’s car following her 

arrest and discovered a prescription bottle containing various pills in the car. Brown testified at the suppression hearing that he did not search the trunk but that he could not 

remember exactly where he found the bottle. Defendant 

consented to providing a breath sample and, at the police 

station, consented to providing a urine sample. The breath 

sample returned a 0.00 blood alcohol content (BAC), and the 

urine sample tested positive for various substances including opioids and muscle relaxers, including buprenorphine, 

norbuprenorphine, carisoprodol, meprobamate, alprazolam, 

alpha-Hydroxyalprazolam, and phentermine.

C. January 6, 2018, Incident

Deputy Hohl was on duty on January 5, 2018, when 

shortly before midnight a white Toyota Camry was reported 

to be running red lights and swerving in its lane. He located 

the vehicle and observed it go across the fog line and almost 

into a ditch, jerk back into its lane, and then cross over 

approximately seven feet beyond the center line and into 

the opposing lane of travel before jerking back into its lane 

again. Hohl initiated a traffic stop.

When Hohl approached the vehicle, the windshield 

wipers were on, despite it being a clear night. Defendant’s 

speech was slow, and she seemed confused and disoriented. 

Hohl told defendant that he stopped her because she was 
Cite as 330 Or App 258 (2024) 263

going all over the road and that he saw her almost crash 

four times. He asked if she had consumed any prescriptions, 

marijuana, or alcohol. Defendant said that she had not and 

explained that she was exhausted from working a long shift 

at work and was distracted picking up her bags off the floor.

Hohl told defendant that her driving and statements were concerning and then asked, “So I was wondering 

if you would be willing to consent to some field sobriety tests 

to make sure you are * * *.” Defendant interrupted him and 

said, “Absolutely not.” Hohl reiterated how poor defendant’s 

driving was and asked again if she was taking medications. 

Defendant said that she was not.

At this point, Deputy Osborne, who was a certified 

drug recognition expert, or DRE, had arrived at the scene 

and explained to defendant that he thought that she had 

“cognitive issues” that were impacting her physical movements and that her speech was slow and slurred. Defendant 

responded that she was tired. Osborne explained that if 

it was just tiredness, they would be able to see that in the 

tests, and he asked, “So what I would like to do is ask you to 

volunteer to do some field sobriety tests.” Defendant refused. 

Osborne explained the tests that he was asking her to perform, including an eye test, walking a line, and holding one 

foot in the air. He asked, “With that knowledge, you’re—

you’re not willing?” Defendant again said no, reiterating 

that she had not had anything to drink but was tired and 

needed to go home.

Osborne then said:

“Let me read you something. Okay? I want to read this 

to you. Okay?

“I am going to ask you to submit to—to purely physical 

field sobriety tests. None of the tests I will ask you to perform will require you to reveal your thoughts, beliefs, or 

state of mind.

“The tests will include the horizontal gaze nystagmus 

test, the walk-and-turn test, and the one-leg stand test. So 

pay attention to what I’m saying. Okay?”

He described the tests and demonstrated each of 

them for her physically. He asked if she had any questions 
264 State v. Hamilton

about the tests and said, “Your refusal or failure * * * to submit to these purely physical tests may be used against you 

in a civil or criminal proceeding. *** Do you understand 

that?” Defendant answered that she did. Osborne stated, 

“So I would really appreciate your cooperation in this.” 

Defendant again refused. Osborne asked if she would “mind 

doing a couple alternative tests” and described those. Still, 

defendant refused.

The deputies had defendant get out of her car and 

placed her under arrest. Osborne continued to question why 

defendant would not perform the tests, stating, “I’m just 

boggled in my mind. ** * I mean, clearly, you’re not thinking 

right. I mean I just don’t understand. I mean they are voluntary tests and you can refuse.” Defendant refused the tests 

and later was charged with DUII and reckless driving.

In a search incident to arrest, Osborne found numerous pills in defendant’s purse, which he identified while 

conducting the search using a particular website that was 

recommended as part of his DRE training. Defendant was 

read her Miranda warnings and transported to the sheriff’s 

office, where she consented to a breath sample that returned 

a 0.00 BAC. After defendant refused to provide a urine or 

blood sample, Osborne applied for and executed a telephonic 

warrant to obtain a urine sample, which came back positive 

for amphetamine in addition to the same substances as the 

October 2017 sample.

D. Procedural History and Arguments on Appeal

Before trial, defendant sought to suppress any 

evidence of her refusal to perform FSTs for both the 

October 2017 and January 2018 stops. She asserted, among 

other arguments, that admitting that evidence would be 

a violation of her rights under Article I, section 9, of the 

Oregon Constitution and Banks. The court denied defendant’s motion after determining that (1) the deputies’ reading of the Rohrs admonishment on both occasions clarified 

that they were asking only that defendant submit to physical tests and (2) Banks did not apply to the circumstances 

of this case because of differences between the FST and 

breath test implied-consent statutes. Accordingly, evidence 
Cite as 330 Or App 258 (2024) 265

of defendant’s refusals to perform the FSTs was admitted at 

trial, and the court instructed the jury that it could consider 

defendant’s refusals as evidence of her guilt.

II. BANKS AND REQUESTS TO PERFORM FSTs

A. Arguments on Appeal and Banks

On appeal, defendant renews her Article I, section 

9, argument that the rule announced in Banks regarding 

requests for breath tests also applies to requests for FSTs.2

Because defendant’s argument hinges on an interpretation 

of Banks, we begin our analysis with an examination of that 

case.

The defendant in Banks was involved in a single-car 

crash and was arrested at the scene and transported to the 

police station after officers determined that he was intoxicated. At the station, the officer explained that he would 

like the defendant to open his mouth and asked, “‘Can I 

look in your mouth,’ defendant responded, ‘No.’” The officer 

explained that “‘if you don’t [open it], then I can’t help you 

maybe take a breath test,’” and the defendant “responded 

that he would not open his mouth.” Banks, 364 Or at 334 

(brackets in original).

“[The officer] explained that defendant was ‘about to be 

asked to submit to a breath test *** under the implied consent law,’ and [the officer] provided information on the consequences for refusing or failing the test, including that his 

refusal to submit to the breath test ‘may be offered against 

[him].’ After reading the [rights and consequences] form, 

[the officer] asked defendant, ‘[W]ill you take a breath 

test?’ Defendant responded that he would not.”

Id. at 334-35 (ellipsis in original; some brackets in original). 

Before trial, the defendant moved to suppress evidence of 

his refusal to consent to the breath test and argued that 

the admission of his refusal would violate his rights under 

Article I, section 9. Id. at 335. The court denied his motion, 

2 Defendant does not advance an argument based on Article I, section 12, of 

the Oregon Constitution and the prohibition against compelled self-incrimination; 

thus, we express no opinion on that issue and note only that there is a separate 

line of cases as discussed by State v. Shevyakov, 311 Or App 82, 489 P3d 580 

(2021). 
266 State v. Hamilton

and the state presented the refusal as evidence of the defendant’s guilt at trial. Id.

The defendant appealed his judgment of conviction, 

again arguing that his refusal to take a breath test was an 

invocation of his right under Article I, section 9, to refuse to 

consent to a warrantless search and that his exercise of that 

constitutional right may not be used as substantive evidence 

of his guilt. Id. at 336. The Supreme Court agreed that a 

search of one’s breath is protected under Article I, section 9, 

and that that provision requires law enforcement either to 

obtain a warrant or justify the search pursuant to a valid 

exception to the warrant requirement before performing a 

search. Id. at 337-38.

Because a defendant’s assertion of their constitutional rights may not be used as substantive evidence of 

their guilt, the court announced a new test to determine the 

admissibility of a refusal to take a breath test. The state, as 

the party seeking to introduce evidence of the refusal, has the 

burden to establish its admissibility. Id. at 343. To meet that 

burden, the state must demonstrate that an officer’s request 

for a breath test “could reasonably be understood only as a 

request to provide physical cooperation and not as a request 

for constitutionally-significant consent to search.” Id.

Applying the test to the officer’s request in that case, 

the court determined that the state did not meet its burden to 

establish that the defendant’s refusal was admissible as evidence of his guilt. Id. The officer’s question—“[W]ill you take 

a breath test?”—was ambiguous. Id. That is, the defendant 

could have reasonably understood the question as a request 

for “consent to search, thereby establishing a warrant exception,” or as a request that the defendant “physically submit 

to a test that was justified by a warrant exception.” Id.

Returning to the case before us, defendant contends that the Banks rule on requests to perform breath 

tests applies with equal force to requests to perform FSTs. 

She argues that, consistent with Banks, because the deputies’ requests for her to perform FSTs were ambiguous as to 

whether the deputies were requesting physical cooperation 
Cite as 330 Or App 258 (2024) 267

or constitutionally significant consent, the state failed to 

carry its burden.

The state reads Banks differently. It contends that 

the rule announced in Banks hinged on a statutory right to 

refuse to physically cooperate with a breath test and that 

there is no similar statutory right for FSTs. Specifically, the 

state contends that ORS 813.100(2) (2017), amended by Or 

Laws 2019, ch 475, § 1, prohibited testing a person’s breath 

if the person refused to undergo the test.3

 In ORS 813.135 

(2017), amended by Or Laws 2019, ch 475, § 5, the state argues 

that no such prohibition exists for FSTs.4

 As the state views 

it, because a person has no statutory right to refuse an FST, a 

request to perform FSTs “is not obscured by a statutory right 

to refusal” that exists for breath tests. Thus, the state contends that, because of that statutory distinction, Banks does 

not apply to refusals to perform FSTs. Alternatively, even if 

Banks does apply, the state remonstrates that the deputies 

made it clear that their requests were only for physical cooperation; thus, the requests did not implicate defendant’s constitutional rights, and the court properly admitted evidence 

of her refusals to perform the tests. As explained below, we 

are not persuaded that Banks can be interpreted so narrowly.

B. Analysis

Article I, section 9, protects “the right of the people 

to be secure in their persons, houses, papers, and effects, 

against unreasonable search, or seizure.” That provision 

3 ORS 813.100 (2017) provided, in part:

“(2) 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 

of a municipal ordinance, if the person refuses the request of a police officer 

to submit to the chemical test after the person has been informed of consequences and rights as described under ORS 813.130.”

4 ORS 813.135 (2017) provided: 

“Any person who operates a vehicle upon premises open to the public or 

the highways of the state shall be deemed to have given consent to submit 

to field sobriety tests upon the request of a police officer for the purpose of 

determining if the person is under the influence of intoxicants if the police 

officer reasonably suspects that the person has committed the offense of driving while under the influence of intoxicants in violation of ORS 813.010 or a 

municipal ordinance. Before the tests are administered, the person requested 

to take the tests shall be informed of the consequences of refusing to take or 

failing to submit to the tests under ORS 813.136.” 
268 State v. Hamilton

mandates that law enforcement obtain a warrant before 

conducting a search unless an exception to the warrant 

requirement applies. State v. Steele, 290 Or App 675, 681, 414 

P3d 458 (2018) (noting that warrantless searches are per se 

unreasonable unless the search is conducted in accordance 

with a recognized exception). Voluntary consent to search 

is one such exception. State v. Paulson, 313 Or 346, 351-52, 

833 P2d 1278 (1992). When a person refuses to consent to a 

search, that refusal invokes the person’s constitutional right 

to insist that the government obtain a warrant, and thus 

evidence of the refusal may not be admitted at trial as evidence of their guilt. Banks, 364 Or at 342.

Those constitutional protections apply to FSTs just 

as they apply to breath tests because, like breath tests, FSTs 

are searches within the meaning of Article I, section 9. See 

State v. Nagel, 320 Or 24, 31, 880 P2d 451 (1994) (explaining 

that FSTs involve “a series of specialized and unusual acts 

designed to elicit information that [the] defendant would not 

have exposed to the public without the officer’s direction” 

and concluding that the administration of FSTs “constitutes 

a search within the meaning of Article I, section 9”); see also

State v. Maddux, 144 Or App 34, 41, 925 P2d 124 (1996) 

(holding that, where a defendant voluntarily consents to a 

request to perform FSTs, the performance of the tests does 

not violate Article I, section 9). Consequently, because the 

deputies did not obtain a warrant and because defendant 

refused to provide consent, if we determine that the deputies’ questions were requests that defendant waive her constitutional right against unreasonable search, her refusal to 

waive that right “cannot be admitted at trial as evidence of 

[her] guilt.” Banks, 364 Or at 342.

The implied-consent statutes identified by the state 

do not serve to alter that constitutional premise and, in any 

event, the FST statutes reflect the same reality as those 

for breath tests: A person may choose to refuse the tests. 

See ORS 813.135 (2017) (noting that “the person requested 

to take the [FSTs] shall be informed of the consequences 

of refusing to take or failing to submit to the tests”); ORS 

813.136 (2017) (providing that, “[i]f a person refuses or fails 

to submit to field sobriety tests as required by ORS 813.135, 
Cite as 330 Or App 258 (2024) 269

evidence of the person’s refusal or failure to submit is admissible in any criminal or civil action”). Further, the consequences imposed for refusing to take or submit to an FST—

admissibility of the refusal in a criminal or civil action—are 

the same consequences that the defendant in Banks challenged as unconstitutional if they were imposed as a result 

of failing to give express consent. 364 Or at 342-43. Thus, for 

breath tests and FSTs, a person retains a statutory right to 

decide whether to perform the test and, in effect, whether to 

revoke the consent implied by statute. Accordingly, we conclude that the reasoning of Banks applies equally to FSTs.

Therefore, the state may introduce evidence of a 

defendant’s refusal to perform FSTs if it demonstrates that 

a law enforcement officer’s request to perform FSTs “could 

reasonably be understood only as a request to provide physical cooperation and not as a request for constitutionally-significant consent to search.” Id. at 343. If the request was 

ambiguous—that is, if it can reasonably be understood as 

either “asking defendant to physically submit to a test that 

was justified by a warrant exception,” or as “asking defendant for [his, her, or their] consent to search, thereby establishing a warrant exception,”—then the state has not met 

its burden, and evidence of the refusal to perform FSTs is 

inadmissible. Id. Accordingly, we must consider whether, for 

both the October 21, 2017, and January 6, 2018, stops, the 

state met its burden of showing that the deputies’ questions 

could be understood only as requests for physical cooperation. After reviewing the record, we conclude that the state 

did not meet that burden for either stop.

To recapitulate, the Banks court concluded that the 

state could not meet its burden because the officer’s question to the defendant—“[W]ill you take a breath test?”—was 

ambiguous as to whether he was asking for physical cooperation or asking the defendant for his consent to conduct the 

test. Here, during the October 2017 stop, Brown told defendant that he wanted to administer FSTs and asked defendant, “Is that something that you would voluntarily consent 

to doing tonight?” After defendant declined, Brown continued 

trying to persuade her, saying “if you consented to the field 

sobriety tests and I was to administer those and you don’t 
270 State v. Hamilton

show indicators of impairment * * * you’re going to be able to 

drive home.” Similarly, during the January 2018 stop, Hohl 

asked defendant if she “would be willing to consent to some 

field sobriety tests,” and Osborne asked if she would “volunteer to do some field sobriety tests” and noted that the FSTs 

were “voluntary tests” that defendant could refuse. That the 

deputies later informed her that they were asking her to submit to “purely physical” tests, read her the Rohrs admonishment, and asked for her “cooperation,” is not enough to 

meet the burden required by Banks. That standard requires 

that the requests be “solely” for physical cooperation such 

that it “could reasonably be understood only as a request to 

provide physical cooperation.”5 Id. Here, during both stops, 

the deputies used language that could reasonably have been 

interpreted as a request that defendant voluntarily “consent to search, thereby establishing a warrant exception,” or 

as a request that she “physically submit to a test that was 

justified by a warrant exception.” Id. Accordingly, applying 

Banks, the state did not establish that defendant’s refusals 

were admissible as evidence of her guilt, and the trial court 

erred in denying the motion to suppress.

Having determined that the trial court erred, we 

must determine whether that error was harmless. See, e.g., 

State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003) (explaining 

that, under Article VII (Amended), section 3, of the Oregon 

5 The state has conceded as much in other cases where a search of the underlying records in those cases reveals that an officer read the Rohrs admonishment 

but also used language suggesting that they were asking for constitutionally significant consent to search. See State v. Martin, 321 Or App 361 (2022) (nonprecedential memorandum opinion) (conceding that Banks applies where the trooper first 

told the defendant that performing the FSTs is a “voluntary thing” but later read 

the Rohrs admonishment warning him that “refusal to submit to physical tests” 

could be used against him); State v. Ramirez-Carmona, 313 Or App 533, 495 P3d 

213 (2021) (conceding that Banks applies where the trooper told the defendant that 

performing the FSTs was “voluntary,” read the Rohrs admonishment asking the 

defendant to submit to “purely physical” tests, and then asked if he consented to the 

tests); State v. Stills, 299 Or App 194, 447 P3d 80, rev den, 365 Or 769 (2019) (conceding that Banks applies where the deputy asked the defendant if he was willing to 

perform FSTs, gave the Rohrs admonishment from memory—including asking if he 

would “take some voluntary, purely physical” tests, described and demonstrated the 

tests, and again asked if the defendant would perform the tests). Although the state 

contends that, in those cases, its concession was based on the narrow or unique 

circumstances of the particular case, each involved—as here—a law enforcement 

officer using language implicating both a request for constitutionally significant 

consent and language implicating a request for physical cooperation. 
Cite as 330 Or App 258 (2024) 271

Constitution, an appellate court will affirm a judgment if 

there is “little likelihood that the particular error affected 

the verdict”). The state elicited evidence of defendant’s 

refusal to perform FSTs numerous times throughout the 

trial and reminded the jury of defendant’s refusal during 

closing argument. In addition, the court instructed the jury 

that it may consider her refusal in determining whether she 

was under the influence of intoxicants. In light of the record 

below, we readily conclude that the trial court’s error was not 

harmless as to the DUII convictions. See State v. RamirezCarmona, 313 Or App 533, 537-38, 495 P3d 213 (2021) (concluding that the trial court’s error in allowing evidence of 

defendant’s refusal to perform filed sobriety tests in a DUII 

prosecution was not harmless where, given the nature of the 

evidence, jury may have relied on that refusal to convict). We 

further conclude that the trial court’s error was harmless as 

to the reckless driving convictions because the state did not 

rely on that evidence in its closing argument; rather, the 

state emphasized the evidence of defendant’s erratic driving 

for both incidents, including swerving into oncoming traffic, 

repeatedly accelerating and decelerating in a way that could 

have caused a collision, and nearly crashing four times in a 

mile stretch.

III. DEFENDANT’S REMAINING ASSIGNMENTS OF 

ERROR

Defendant next challenges the admission of a urine 

sample obtained following the October 2017 stop, contending that the trial court erred when it denied her motion to 

suppress the sample. Defendant consented to providing the 

sample following her arrest and the discovery of a pill bottle in her car, and the sample was positive for various substances. Because the deputies testified that they could not 

be certain where they found the pill bottle, the trial court 

suppressed evidence of its discovery; however, the court 

admitted evidence of the urine analysis after it concluded 

that defendant’s consent to provide a urine sample was 

attenuated from any misconduct. Defendant argues that the 

search and discovery of the pill bottle was a violation of her 

rights under Article I, section 9, and thus that her consent 

to the urine analysis was a product of police misconduct that 
272 State v. Hamilton

also must be suppressed. See State v. Unger, 356 Or 59, 86, 

333 P3d 1009 (2014) (adhering to the principle that, where a 

defendant provides voluntary consent following police misconduct, the evidence must be suppressed unless the state 

can show that the consent was “independent of, or only tenuously related to, the unlawful police conduct”). Even assuming that discovery of the pill bottle was a constitutional violation, we agree with the trial court’s determination that, 

on this record, the state met its burden of proof that defendant’s consent to the urine analysis was sufficiently attenuated from any misconduct. In particular, the state elicited 

evidence that the officers did not attempt to capitalize on 

the discovery of the pill bottle to obtain defendant’s consent, 

defendant gave her consent after an officer gave her Miranda 

warnings and after being taken to a different location from 

where the pill bottle was discovered, and defendant demonstrated that she was capable of and willing to refuse police 

requests. Accordingly, we reject defendant’s challenge to the 

admission of the urine sample following the October 2017 

stop.

In defendant’s final two assignments of error, she 

contends that the trial court erred in denying her motion to 

suppress evidence obtained under the January 2018 warrant and in ruling that Osborne, a certified DRE, could 

use a website to identify the pills found in her vehicle. We 

reject defendant’s challenge to the warrant because it is not 

preserved for our review, and we further conclude that we 

need not reach defendant’s challenge to Osborne’s testimony 

because the record could develop differently on remand.

Convictions on Counts 1 and 3 reversed and 

remanded; remanded for resentencing; otherwise affirmed.