No. 44 August 10, 2017 781

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Petitioner on Review,

v.

RANDALL RAY RITZ,

Respondent on Review.

(CC 11CR1068; CA A152111; SC S063292)

On review from the Court of Appeals.*

Argued and submitted January 12, 2016.

Paul L. Smith, Deputy Solicitor General, Salem, argued 

the cause and filed the briefs for petitioner on review. Also 

on the briefs was Ellen F. Rosenblum, Attorney General.

Anne Fujita Munsey, Deputy Public Defender, Salem, 

argued the cause and filed the brief for respondent on review. 

Also on the brief was Ernest G. Lannet, Chief Defender, 

Office of Public Defense Services.

Before Balmer, Chief Justice, and Kistler, Walters, and 

Landau, Justices, and Brewer and Baldwin, Senior Justices 

pro tempore, and Tookey, Judge of the Court of Appeals, 

Justice pro tempore.**

BALDWIN, S. J.

The decision of the Court of Appeals is reversed, and 

the case is remanded to the Court of Appeals for further 

consideration.

______________

** On appeal from Curry County Circuit Court, Jesse C. Margolis, Judge. 

270 Or App 88, 347 P3d 1052 (2015).

** Nakamoto, Flynn, and Duncan, JJ., did not participate in the consideration or decision of this case.
782 State v. Ritz

Case Summary: Defendant moved to suppress evidence that police officers 

obtained after entering and searching defendant’s home without a warrant. The 

trial court denied the motion after finding, among other reasons, that the natural dissipation of blood-alcohol evidence in defendant’s body established exigent 

circumstances sufficient to justify the warrantless search. The Court of Appeals 

affirmed. Held: The state failed to prove that the police officers faced exigent 

circumstances, because the state failed to establish that obtaining a warrant 

before entering defendant’s home would have delayed the police officers’ efforts to 

preserve defendant’s blood-alcohol evidence.

The decision of the Court of Appeals is reversed, and the case is remanded to 

the Court of Appeals for further consideration.
Cite as 361 Or 781 (2017) 783

BALDWIN, S. J.

The parties in this case raise the issue of whether 

the natural dissipation of alcohol in a suspect’s body creates 

such an emergency that police officers may enter a suspect’s 

home without a warrant in order to secure the suspect’s 

blood-alcohol evidence. Article I, section 9, of the Oregon 

Constitution and the Fourth and Fourteenth Amendments 

to the United States Constitution prohibit unreasonable 

searches and generally treat warrantless searches as per se

unreasonable. The warrant requirement, however, is subject 

to exceptions. One exception is for exigent circumstances, 

which include circumstances requiring officers to act quickly 

to prevent the destruction of evidence.

In this case, police officers entered the home of 

defendant, Ritz, without a warrant, to secure evidence of 

his blood-alcohol concentration (BAC) after having probable 

cause to believe that he had been driving under the influence of intoxicants (DUII), a misdemeanor offense. ORS 

813.010(1). The state argues that the warrantless entry was 

justified because the natural dissipation of alcohol in defendant’s body is a type of destruction of evidence that establishes an exigent circumstance.

The Court of Appeals upheld the trial court’s denial 

of defendant’s motion to suppress the blood-alcohol evidence. 

For the reasons that follow, the decision of the Court of 

Appeals is reversed, and the case is remanded to the Court 

of Appeals for further consideration.

I. BACKGROUND

The parties do not dispute the relevant findings of 

fact that the trial court made during a pretrial suppression 

hearing. On October 11, 2011, at about 10:15 p.m., officers were 

dispatched to a single-vehicle crash near defendant’s trailer, 

where he resided with his girlfriend, Wilson-McCullough. 

Officers arrived shortly after 10:30 p.m. and found a truck 

disabled in a ditch next to defendant’s driveway. Defendant 

was not there, but one officer, Deputy Lorentz, spoke with 

Wilson-McCullough, who confirmed that defendant had 

been driving the truck and suggested that defendant had 

been drinking earlier in the day. Wilson-McCullough also 
784 State v. Ritz

allowed Lorentz to look through the front door into defendant’s trailer to see if defendant was inside. Lorentz did not 

see defendant from the front door and conveyed his findings 

to the other officers present. Although the officers could not 

find defendant, they heard rustling in the brush around the 

trailer, which they believed to be defendant attempting to 

evade them.

While other officers remained at the scene to look 

for defendant, Lorentz left to speak with the registered 

owner of the disabled truck, a neighbor named Zimmerman. 

Zimmerman told Lorentz that he had seen defendant driving 

the truck erratically around the time of the police dispatch. 

He also said that defendant appeared slumped over and 

intoxicated at that time. Lorentz went back to defendant’s 

trailer and informed the other officers of Zimmerman’s 

statements.

With no luck finding defendant, officers began to 

leave the scene. One officer, Trooper Spini, remained until 

about 11:50 p.m., when he left for the Brookings Police 

Department. He stayed there for about an hour and returned 

to defendant’s residence at about 12:56 a.m. As he drove up, 

Spini saw defendant and Wilson-McCullough on a porch just 

outside the trailer. Defendant immediately went into the 

trailer and did not respond to Spini’s subsequent requests 

for defendant to come out. At around 1:05 a.m., Spini called 

for assistance from other officers, including Lorentz and 

officers from the Brookings Police Department, who arrived 

about 10 minutes later.

After the officers made additional attempts to get

defendant to exit voluntarily, Lorentz crawled into the 

trailer through an open window and unlocked the front door, 

allowing the other officers in. Defendant had locked himself 

in a bathroom and initially refused officers’ demands that 

he come out. Defendant came out only when officers began 

unscrewing the bathroom doorknob and threatened him 

with a Taser. After defendant opened the bathroom door, officers detected an overwhelming odor of alcohol and observed 

that defendant’s speech was slurred and that his eyes were 

watery and bloodshot. At that time, around 1:33 a.m., Spini 

placed defendant under arrest.
Cite as 361 Or 781 (2017) 785

Spini left the scene with defendant for the Curry 

County Jail at around 2:00 a.m. After arriving at the jail 

at around 2:23 a.m., defendant made incriminating statements. Spini had assumed that, if he asked defendant for 

consent to test his BAC, defendant would have refused to 

provide consent. But, before officers had the chance to ask 

for consent, defendant volunteered to take a breath test. The 

breath test showed that defendant, about four hours after 

he last drove, still had a BAC level of 0.14 percent, which is 

above the legal limit of 0.08. ORS 813.010(a).

Defendant was charged with DUII, ORS 813.010, 

and driving while suspended, ORS 811.182. Before trial, 

defendant moved to suppress all evidence that the officers 

obtained following their warrantless entry into his home. 

At the suppression hearing, Spini testified that one reason 

that he did not seek a warrant before entering the trailer 

was because he was concerned about the dissipation of alcohol in defendant’s body. Spini understood that alcohol typically dissipates at an average of about 0.015 percent per 

hour, though he noted that dissipation rates vary from person to person. Spini further stated that it would take about 

90 minutes for him to obtain a search warrant, although 

Lorentz testified that he could do so in about 45 minutes.

The trial court concluded that the officers developed 

probable cause to believe that defendant had committed a 

DUII after Lorentz spoke with Zimmerman—that is, before 

the officers completed their initial investigation. The trial 

court also concluded that, based on Spini’s testimony, the officers had probable cause to believe that they could still obtain 

evidence of defendant’s alleged DUII by taking a sample of 

defendant’s blood or breath at the time the officers entered 

defendant’s residence. Further, the trial court found that the 

officers entered the home without a warrant because, among 

other reasons, “the officers were concerned about the dissipation of alcohol in [] defendant’s blood or breath if a blood 

or breath test was obtained.” As a result, the trial court 

held that exigent circumstances “provide[d] a valid basis

for entry into the trailer without a warrant in this case.”

In reaching that result, the trial court rejected 

defendant’s argument that any exigency was the result of 
786 State v. Ritz

improper officer delay. Defendant had argued that the officers could have applied for the warrant during the time 

between first leaving the scene and subsequently returning to the scene about an hour later. But, according to the 

trial court, the officers could not have obtained a warrant to 

search the trailer at that point because they had no reason 

to believe that he was in the trailer. The trial court instead 

found that the officers did not reasonably believe that defendant was in the trailer until they returned to the scene at 

around 1:00 a.m. The trial court found that, from that point 

on, officers did not unnecessarily delay entering defendant’s 

residence and arresting him. As a result, the trial court 

denied defendant’s motion to suppress.1

Defendant appealed, arguing that the natural dissipation of alcohol does not establish an exigency justifying 

a warrantless home entry. The state argued, on the other 

hand, that the exigent circumstances justifying a warrantless home entry may be established without regard to how 

long it would take the investigating officers to obtain a warrant. Instead, the state contended, the exigency is established when an officer has reason to believe that a DUII 

suspect has evidence of that DUII in his or her body and the 

suspect has refused to leave his or her home.

The Court of Appeals affirmed the trial court’s 

order under both the state and federal constitutions and 

held that the natural dissipation of alcohol in defendant’s 

body justified the warrantless entry that occurred in this 

case. State v. Ritz, 270 Or App 88, 100-01, 347 P3d 1052 

(2015). Although the court reached the result sought by the 

state, it did not apply the reasoning that the state had presented. As an initial matter, the court held that, to prove an 

exigency, the state was required to show how long it would 

have taken to obtain a warrant. Id. at 97.

1 The trial court relied on two other grounds to deny defendant’s motion to 

suppress and justify the warrantless entry: hot pursuit and officer safety. To the 

extent that the state asserted those grounds on appeal, the Court of Appeals did 

not reach them, because it affirmed the trial court’s ruling based solely on the 

state’s destruction-of-evidence rationale. State v. Ritz, 270 Or App 88, 93, 347 P3d 

1052 (2015). As a result, the only issue before this court is the state’s destructionof-evidence rationale.
Cite as 361 Or 781 (2017) 787

Additionally, the court explained that, under the 

facts of this case, the state could establish an exigency only 

by showing that “the suspect’s blood would have lost all 

evidentiary value” if the officers had waited to perform the 

search until after obtaining a warrant. Id. at 99 (emphasis 

added). The state had argued that previous decisions by this 

court had upheld exigency findings based on a showing that 

the suspect’s blood would have lost only some evidentiary 

value if officers had obtained a warrant first. Id. at 93-94. 

But the Court of Appeals distinguished the facts of those 

cases, which had involved field sobriety tests (FSTs) or blood 

draws taken from suspects detained in a hospital setting, 

from the facts of this case, which involves a warrantless 

home entry. The court noted that the home is afforded the 

greatest protection from state intrusions. Id. at 94.

The court then explained the process for determining when a suspect’s blood would lose all of its evidentiary value. Because alcohol dissipates gradually and in a 

relatively predictable manner, the state can use a process 

called retrograde extrapolation to work backwards from a 

suspect’s later BAC test results and estimate the suspect’s 

BAC at the time that he or she was driving. Id. at 98; see

State v. Eumana-Moranchel, 352 Or 1, 5, 277 P3d 549 (2012) 

(describing retrograde extrapolation). According to the 

court, retrograde extrapolation can prevent a suspect’s previous BAC level from losing all evidentiary value, even while 

the alcohol in the suspect’s body is dissipating. Ritz, 270 Or 

App at 98.

As a result, the Court of Appeals concluded that 

the evidentiary value of BAC evidence is lost “only when so 

much alcohol has been removed from the bloodstream that 

retrograde extrapolation can no longer produce a reasonably 

accurate estimate of the suspect’s BAC at the time he or she 

was driving.” Id. The court presumed that a reliable retrograde extrapolation could be obtained until a suspect’s BAC 

level reaches 0.00. Id. at 100 n 4. The court further held 

that, “in the absence of contrary information about defendant’s actual condition,” police could rely on the assumption 

that, at the time of the accident, defendant had a BAC level 

of 0.08, the statutory threshold for intoxication. Id. at 100.
788 State v. Ritz

Relying on Spini’s testimony that alcohol dissipates 

on average at 0.015 BAC per hour, the Court of Appeals then 

held,

“With a dissipation rate of 0.015 per hour, it would take 

approximately five hours and twenty minutes for a person’s BAC to drop from 0.08 to 0.00. A little more than 

four hours elapsed between defendant’s accident and the 

breath test. If police believed that it could take as long as 

90 additional minutes to obtain a warrant (a reasonable 

estimation on this record), they could foresee a substantial 

possibility that defendant’s BAC would have dropped from 

0.08 (the threshold level for liability) to zero by the time it 

could be measured. On those facts, the police had an objectively reasonable basis to believe that waiting for a warrant would have resulted in the complete loss of evidence. 

In short, even considering the relative severity of the state’s 

intrusion and the broadness of its scope, the timing of the 

search indicates that it was reasonable under these specific 

circumstances.”

Id. at 100-01 (footnote omitted).

Thus, the Court of Appeals upheld the trial court’s 

denial of defendant’s motion to suppress, but it did so on 

grounds that substantially undermined the arguments that 

the state had presented. The state petitioned for review, 

seeking to affirm the result reached by the Court of Appeals 

but under different reasoning. This court allowed the state’s 

petition. Although defendant neither petitioned for review 

nor filed a response to the state’s petition that contained a 

contingent request for review, we nevertheless exercise our 

discretion to consider defendant’s arguments for reversing 

the result reached by the Court of Appeals. ORAP 9.20(2).2

2 Ordinarily, a party seeking reversal of a Court of Appeals decision will 

either petition for review itself or make a contingent request for review in its 

response to the opposing party’s petition for review. See ORAP 9.05(4) (describing 

the contents of a petition for review); ORAP 9.10(1) (allowing a response to a petition for review to raise contingent requests for review). Although defendant took 

neither of those steps in this case, this court has the discretion to “consider other 

issues that were before the Court of Appeals.” ORAP 9.20(2). We choose to reach 

defendant’s argument in this case because the state did not object to defendant’s 

arguments for reversal and because those arguments had been properly before 

the Court of Appeals, raised purely legal questions, and were closely connected 

to the question presented by the state in the petition for review that this court 

allowed. Estate of Michelle Schwarz v. Philip Morris Inc., 348 Or 442, 457, 235 
Cite as 361 Or 781 (2017) 789

II. ANALYSIS

On review, the state argues that the Court of 

Appeals’ analysis erroneously limits exigent circumstances 

to those situations where obtaining a warrant would result 

in losing all evidentiary value in the BAC evidence. The 

state contends, instead, that an exigent circumstance is 

established if obtaining a warrant would result in losing 

any evidentiary value in the BAC evidence. Defendant, on 

the other hand, challenges the Court of Appeals’ conclusion 

that the home entry in this case was justified under exigent 

circumstances, arguing that the reasonableness of the entry 

must be considered in light of factors other than destruction 

of evidence, such as the extent of the privacy intrusion, the 

seriousness of the offense, and the need for the evidence. We 

first address the parties’ arguments under Article I, section 9,

and turn to the Fourth and Fourteenth Amendments of the 

federal constitution only if necessary.

A. Framework

Article I, section 9, of the Oregon Constitution establishes the right of the people “to be secure in their persons, 

houses, papers, and effects, against unreasonable search, 

or seizure.” That provision protects against arbitrary and 

oppressive state interference with the privacy and personal 

security of the people. See State v. Fair, 353 Or 588, 602, 302 

P3d 417 (2013) (so stating). The touchstone of that protection is reasonableness. Id.

In applying the constitutional standard of reasonableness, “[t]his court has adopted a categorical view *** 

that, subject to certain specifically established and limited 

exceptions, deems warrantless searches to be per se unreasonable.” State v. Bonilla, 358 Or 475, 480, 366 P3d 331 (2015). 

Thus, before the state conducts a search, Article I, section 9, 

generally requires it to obtain a warrant, issued by a neutral magistrate and supported by probable cause, authorizing the search. State v. Rodgers/Kirkeby, 347 Or 610, 624, 

227 P3d 695 (2010). “The constitution requires a warrant 

so that a disinterested branch of government—the judicial 

branch—and not the branch that conducts the search—the 

P3d 668, adh’d to on recons, 349 Or 521, 246 P3d 479 (2010) (describing the standards for exercising discretion under ORAP 9.20(2)).
790 State v. Ritz

executive branch—makes the decision as to whether there 

is probable cause to search.” State v. Kurokawa-Lasciak, 351 

Or 179, 186, 263 P3d 336 (2011).3

The state contends that its warrantless entry into 

defendant’s residence falls within an exception to the warrant requirement—namely, the exigent circumstances 

exception. Exigent circumstances include situations where 

the delay caused by obtaining a warrant would likely lead 

to the loss of evidence. See State v. Snow, 337 Or 219, 223, 

94 P3d 872 (2004) (explaining that an exigent circumstance 

includes “‘a situation that requires police to act swiftly *** 

to forestall * ** the destruction of evidence’” (quoting State 

v. Stevens, 311 Or 119, 126, 806 P2d 92 (1991))).

The state has the burden of proving that the circumstances at the time of the warrantless search fall within the 

exigent circumstances exception. State v. Baker, 350 Or 641, 

647, 260 P3d 476 (2011). To satisfy that burden in this case, 

the state must establish both that the officers had probable 

cause and that exigent circumstances justified the officers’ 

warrantless search. See Snow, 337 Or at 223 (stating that 

the exigent circumstances exception “requires both probable 

cause and an exigency”).

The trial court concluded that the state satisfied 

both requirements. The trial court first found that officers had the probable cause necessary to support searching defendant’s residence for his blood-alcohol evidence. 

According to the trial court, the statements of WilsonMcCullough and Zimmerman supported probable cause to 

believe that defendant had been driving under the influence 

of alcohol and that defendant’s residence contained evidence 

of that crime—namely, defendant’s BAC. As a result, the 

trial court determined that the state satisfied the probable 

cause requirement. The parties do not dispute that finding.

3 See also State v. Matsen/Wilson, 287 Or 581, 587, 601 P2d 784 (1979) (“‘The 

point of the Fourth Amendment, which often is not grasped by zealous officers, 

is not that it denies law enforcement the support of the usual inferences which 

reasonable men draw from evidence. Its protection consists in requiring that 

those inferences be drawn by a neutral and detached magistrate instead of being 

judged by the officer engaged in the often competitive enterprise of ferreting out 

crime.’” (Quoting Johnson v. United States, 333 US 10, 13-14, 68 S Ct 367, 92 L Ed 

436 (1948).)).
Cite as 361 Or 781 (2017) 791

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 

P3d 729 (2010) and State v. Mazzola, 356 Or 804, 345 P3d 

424 (2015). We therefore review those decisions before turning to the parties’ arguments.

In Machuca, the defendant had caused a traffic accident and was taken to the hospital. 347 Or at 646. An officer 

gathered evidence at the scene of the accident and then at 

the hospital, establishing probable cause that the defendant 

had committed a DUII and still had alcohol in his body. The 

officer placed the defendant under arrest and the defendant 

provided a blood draw, which was administered about 90 

minutes after the traffic accident. Id. at 646-47.4

In assessing the constitutionality of that warrantless blood draw, this court stated that, under the facts of 

that case, such a warrantless search and seizure is permissible, “‘unless a warrant can be obtained without sacrificing 

the evidence.’” Id. at 656 (quoting State v. Milligan, 304 Or 

659, 666, 748 P2d 130 (1988)). The defendant argued that 

the state failed to meet that burden, because the state failed 

to establish the reasonable amount of time that the investigating officer could have expected it to take to obtain a 

warrant. The defendant contended that, without knowing 

how long it would take to get a warrant, the state could not 

establish that obtaining a warrant would require sacrificing 

any of the blood-alcohol evidence being sought.

This court rejected that argument. The officer had 

acted promptly to obtain the blood sample after completing 

his investigation, and because the suspect was in a hospital receiving treatment, medical personnel were already 

on hand to perform the blood draw. Id. at 646-47. Under 

4 The officer read the defendant his implied consent rights and consequences 

and then asked the defendant for consent to perform the blood draw. Id. at 646. 

The defendant consented to the blood test but later argued that his consent was 

not valid because it had been compelled by threat of legal sanction for refusing 

to comply. ORS 813.095(1) (establishing “the offense of refusal to take a test for 

intoxicants”). This court did not reach the question of whether the defendant’s 

consent was valid, because it held that, based on the exigent circumstances, the 

state was allowed to compel the blood draw. Machuca, 347 Or at 657.
792 State v. Ritz

those facts, any time spent attempting to obtain a warrant 

would have delayed taking the blood draw. And any delay in 

taking the blood draw, regardless of how long, would have 

required sacrificing at least some of the blood-alcohol evidence that was being sought. In support of that point, the 

court explained that blood-alcohol evidence is in a persistent 

state of destruction beginning soon after it is consumed and 

continuing until it has been fully metabolized by the body. 

Id. at 652-57. The court therefore held that, under the facts 

of Machuca, the investigating officer reasonably believed 

that obtaining a warrant would have sacrificed some of the 

blood-alcohol evidence being sought. Id. at 656-57.

In Mazzola, the court considered the constitutionality of a warrantless field sobriety test (FST) of a DUII suspect 

based on the natural dissipation of an unknown, nonalcohol 

intoxicant. 356 Or at 807, 817. As in Machuca, the record did 

not establish how long it would have reasonably taken the 

officer to obtain a warrant. And, because the investigating 

officer in that case knew only that the suspect appeared to be 

under the influence of a drug, but did not know which drug, 

the officer did not know the rate of dissipation. Id. at 809. 

The defendant argued that, without those pieces of information, the state could not establish that obtaining a warrant 

would require sacrificing the evidence being sought.

The court rejected that argument, stressing that 

the state had been attempting to prove the DUII based on 

evidence of impairment other than a chemical analysis of 

the defendant’s breath or blood. Compare ORS 813.010(1)(a)

(establishing DUII when driver “[h]as 0.08 percent or more 

by weight of alcohol in the blood of the person as shown 

by chemical analysis of the breath or blood of the person”) 

with ORS 813.010(1)(b) (establishing DUII when driver

“[i]s under the influence of intoxicating liquor, cannabis, 

a controlled substance or an inhalant”). When attempting 

to prove the DUII based on evidence of impairment other 

than a chemical analysis, “the most probative evidence generally will consist of observations made while—or close in 

time after—the defendant was driving.” Mazzola, 356 Or 

at 818-19. In those circumstances, the state could prove an 

exigency despite the lack of evidence establishing the dissipation rate and the time it would take to obtain a warrant.
Cite as 361 Or 781 (2017) 793

The court went on to explain that, “where a warrantless search for evidence of the crime of DUII is supported by probable cause to arrest the defendant, the issue 

of exigency should be assessed in light of the reasonableness 

of the search in time, scope, and intensity.” Id. at 819-20. 

The court held that the facts in that case “established a sufficient exigency to justify the warrantless administration of 

the FSTs in this case.” Id. at 820.

“Here, limited testing designed to detect evidence of current impairment was performed on a person who already 

had been validly stopped and also was subject to arrest for 

DUII. The tests at issue were limited in scope and intensity; they did not intrude into defendant’s body; rather, 

they assessed her coordination, balance, and motor skills. 

Those tests constituted probative evidence of an element—

current impairment—of the crime of defendant’s arrest, 

they were administered soon after defendant had been 

observed driving, and they immediately preceded her 

arrest. With respect to exigency, there also was evidence 

that over time the body filters drugs and they dissipate 

in one’s body, that various drugs can dissipate at different rates, and that the effects of drugs wear off over time. 

Again, the challenged FSTs assess a motorist’s impairment 

at the time of driving, not at a later time.”

Id. (quotation omitted).

B. The Parties’ Arguments

As noted, the parties dispute whether exigent circumstances justified the officers’ warrantless search in this 

case. The state reads both Machuca and Mazzola as upholding the constitutionality of a warrantless exigency search 

based on the loss of any evidence of an intoxicating substance in the suspect’s body. According to the state, delaying entry into defendant’s residence in this case would have 

allowed additional blood-alcohol evidence to dissipate, thus 

sacrificing at least some of the evidence being sought, as 

in Machuca and Mazzola. The state therefore argues that, 

under Machuca and Mazzola, the officers’ warrantless entry 

into defendant’s residence was constitutional in this case 

and that the Court of Appeals’ reasoning was erroneous.

Defendant, on the other hand, contends that an 

exigency search is justified only when the law enforcement 
794 State v. Ritz

interests advanced by a warrantless search outweigh the 

privacy interests at stake. Defendant argues that, although 

preventing the destruction of evidence is a legitimate law 

enforcement interest, the weight of that interest must be 

discounted by the chance that an exigency search will fail 

to prevent the evidence from being destroyed. Defendant 

points out that, in this case, in order to preserve defendant’s 

BAC evidence without a warrant, the officers were statutorily required to obtain his consent, which the investigating 

officers had no reason to expect.

Further, defendant argues that the privacy interests at stake in a home invasion are more intrusive than 

the blood draw in Machuca and the FSTs in Mazzola. As 

this court recently stated, “A government intrusion into the 

home is at the extreme end of the spectrum: ‘Nothing is as 

personal or private. Nothing is more inviolate.’” Fair, 353 

Or at 600 (quoting State v. Tourtillott, 289 Or 845, 865, 618 

P2d 423 (1980) (emphasis added)). One’s home is “the quintessential domain protected by the constitutional guarantee 

against unreasonable searches.” State v. Guggenmos, 350 

Or 243, 250, 253 P3d 1042 (2011) (internal quotation marks 

and citation omitted). Defendant points out that, because 

“[t]he very purpose of our constitutional provision was to 

protect a person’s home from governmental intrusions,” the 

right against intrusion into the home “should be stringently 

protected by the courts.” State v. Davis, 295 Or 227, 243, 666 

P2d 802 (1983).

At its core, the parties’ dispute is about the factors 

that courts should consider, and how those factors should be 

weighed, in determining whether an exigency search is justified. The state, in effect, gives decisive weight to the question 

of whether obtaining a warrant would delay preserving evidence that is dissipating. Defendant maintains that preventing the further dissipation of evidence is merely a component 

of the law enforcement interest that must then be weighed 

against the extent the privacy interests invaded by a search.

C. Evidentiary Deficiencies

The record before us, however, does not allow us to 

resolve that dispute. Regardless of what other factors, if any, 

might be considered when determining whether an exigency 
Cite as 361 Or 781 (2017) 795

search is justified, the state must prove that there was, in 

fact, an exigency. In this case, that means that the state 

must establish that officers reasonably believed that the 

delay caused by obtaining a warrant would likely lead to the 

loss of evidence. The state argues that delaying entry into 

defendant’s residence in this case would have allowed additional blood-alcohol evidence to dissipate. But the record 

does not support such a conclusion.

Here, the record demonstrates that the officers 

were seeking defendant’s BAC. That is the same evidence 

that was sought by the blood draw in Machuca and explains 

the state’s reliance on that case. Machuca is distinguishable, however, because a blood draw directly preserves a 

defendant’s BAC, but a home entry does not. A blood draw 

removes a sample of blood from the defendant’s body and 

therefore removes a sample of blood from the body’s metabolic processes causing the blood-alcohol evidence to dissipate. The sample is then used to test a defendant’s BAC at 

the time of the blood draw. Thus, any delay in performing 

the blood draw necessarily equates to a delay in preserving 

the evidence.

The same is not true for a home entry. The metabolic process causing the blood-alcohol evidence to dissipate 

does not stop simply because officers have entered a defendant’s home. Instead, to preserve a defendant’s BAC, officers 

entering a home must then also obtain and test a sample of 

the defendant’s breath or blood.5

 As a result, the appropriate 

question in determining whether there was an exigency is 

not whether obtaining a warrant would have delayed entering defendant’s home. The appropriate question is whether 

obtaining a warrant would have delayed obtaining and testing a sample of defendant’s breath or blood.

As noted above, defendant volunteered to take a 

breath test after arriving at the police station. Although, in 

5 A urine sample may be used to “determin[e] the presence of cannabis, a 

controlled substance or an inhalant in the person’s body.” ORS 813.131(1). And 

an officer may request a urine sample only if the officer has specific training in 

recognizing drug-impaired driving and has reasonable suspicion that the defendant engaged in drug-impaired driving. ORS 813.131(2). The record in this case 

provides no grounds for requesting defendant to provide a urine sample and the 

state does not contend that the officers intended to request one from defendant.
796 State v. Ritz

hindsight, it may be apparent that delaying entry to obtain 

a warrant to enter the home might have delayed defendant’s 

voluntary breath test, defendant’s willingness to volunteer 

for a breath test was not known to the officers at the time 

they entered defendant’s residence. And the time that the 

officers entered the home is “the relevant temporal reference 

point” for us to consider. Bonilla, 358 Or at 488; see also 

id. at 487 (“When an exigency-based exception applies, the 

lawfulness of a search depends on what a reasonable person 

would make of the facts known to the officer at the time of 

the search.”). Defendant’s conduct up to that point did not 

suggest a willingness to cooperate with the officers. In fact, 

Trooper Spini testified that he believed defendant would 

refuse to provide a breath test if asked to do so.

Thus, at the time that officers entered defendant’s 

home, they had no reason to think that obtaining a warrant 

to enter the home would delay a consensual search for defendant’s BAC evidence, because they had no reason to think 

that defendant would consent to such a search. As defendant 

points out, without satisfying the statutory standards for 

consent, the officers were required by statute to obtain a 

warrant (or some other type of court order) to obtain defendant’s BAC evidence. Under ORS 813.100(1), an officer 

may request that a DUII defendant submit to a chemical 

test that would determine his or her BAC.6

 But, under ORS 

813.100(2) and ORS 813.320(2)(b), if the defendant refuses 

to provide a sample, then an officer may compel the defendant’s cooperation by obtaining a warrant.7

6 ORS 813.100(1) (“Any person who operates a motor vehicle upon premises 

open to the public or the highways of this state shall be deemed to have given consent, subject to the implied consent law, to a chemical test of the person’s breath, 

or of the person’s blood if the person is receiving medical care in a health care 

facility immediately after a motor vehicle accident, for the purpose of determining 

the alcoholic content of the person’s blood if the person is arrested for driving a 

motor vehicle while under the influence of intoxicants in violation of ORS 813.010 

or of a municipal ordinance. A test shall be administered upon the request of a 

police officer having reasonable grounds to believe the person arrested to have 

been driving while under the influence of intoxicants in violation of ORS 813.010 

or of a municipal ordinance. Before the test is administered the person requested 

to take the test shall be informed of consequences and rights as described under 

ORS 813.130.”).

7 ORS 813.100(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 
Cite as 361 Or 781 (2017) 797

If, at the time that the officers entered defendant’s 

home, a warrant was statutorily required to obtain and test 

defendant’s BAC evidence, then it is not clear how requiring 

the officers to obtain a warrant to enter the home—rather 

than after entering the home—was likely to delay preserving defendant’s BAC evidence, particularly because the officers were capable of applying for a warrant from the scene. 

In other words, obtaining a warrant prior to entering the 

home would have delayed entering the home. But, if officers were required to obtain a warrant in order to preserve 

defendant’s BAC, then obtaining a warrant before entering 

defendant’s home would not have delayed preserving defendant’s BAC evidence. As a result, based on the record and 

arguments before us, the state has not even satisfied the 

exigency standard that it reads Machuca as applying.

In response to that, the state simply changes the 

evidence it says the officers were seeking. The state notes 

that if a defendant refuses an officer’s request to provide 

a sample for chemical testing, then the state may use that 

refusal as evidence against the defendant. See ORS 813.310

(“[E]vidence of the person’s refusal is admissible in any civil or 

criminal action, suit or proceeding arising out of acts alleged 

to have been committed while the person was driving a motor 

vehicle on premises open to the public or the highways while 

under the influence of intoxicants.”); ORS 813.130(2)(a)

(“If the person refuses a test or fails, evidence of the refusal 

or failure may also be offered against the person.”). So, 

according to the state, the home entry would lead to evidence 

against defendant even if he refused to provide a sample.

We reject that argument. Even if the officers had 

anticipated that defendant would refuse to provide a sample, 

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.”); ORS 813.320 (2)(b) (“The provisions of the implied consent law shall not be construed by any court to limit the 

introduction of otherwise competent, relevant evidence of the amount of alcohol 

in the blood of a defendant in a prosecution for driving while under the influence 

of intoxicants if: * ** The evidence is obtained pursuant to a search warrant.”); 

see also ORS 813.100(5) (“Nothing in this section precludes a police officer from 

obtaining a chemical test of the person’s breath or blood through any lawful 

means for use as evidence in a criminal or civil proceeding including, but not 

limited to, obtaining a search warrant.”).
798 State v. Ritz

any anticipated refusal is not evidence capable of supporting 

an exigency search, because it is evidence that did not yet 

exist (and never did exist) and it is not subject to destruction 

or dissipation. Thus, although a warrantless home entry 

might produce evidence of a refusal, it is not accurate to say 

that a warrantless home entry would preserve evidence of a 

refusal.

Finally, the state also argues that the officers were 

searching for observational evidence—specifically, whether 

defendant appeared intoxicated. That observational evidence is distinct from a chemical test of a defendant’s 

breath or blood, even though both types of evidence are 

used to establish a defendant’s intoxication. Compare ORS 

813.010(1)(a) (establishing DUII when a person’s BAC is at 

or above 0.08 percent) with ORS 813.010(1)(b), (c) (establishing DUII when a person is under the influence of intoxicants). Observational evidence was sought by the FST used 

in Mazzola and explains the state’s reliance on that case.

But Mazzola is distinguishable because none of 

the officers in this case testified before the trial court that 

observational evidence was the object of their search.8

 In 

short, the trial court did not make, and was not asked to 

make, a finding that the officers had probable cause to enter 

defendant’s home on that basis. We cannot presume that 

such probable cause evidence exists. See Guggenmos, 350 Or 

at 260 (“[W]e cannot presume the existence of other favorable facts; we must confine our review to the record made.” 

(Quotation omitted.)).9

8 The state presented no argument to justify considering the possible destruction of evidence other than that testified to by the investigating officers. Further, 

in Mazzola, the officer directly observed the defendant’s intoxication immediately 

before asking the defendant to perform the FST. 356 Or at 806. In this case, however, approximately three hours separated the last time defendant was observed 

to be intoxicated. And there is no record evidence regarding how much alcohol 

a reasonable officer would believe remained in defendant’s body at the time the 

officers entered his home or the amount of alcohol that must remain to produce 

observable effects. 

9 Similarly, the Court of Appeals held that “in the absence of contrary information about [a] defendant’s actual condition, police could reasonably rely on 

the presumptive threshold for DUII in Oregon—0.08 percent BAC by weight—

as a guidepost.” Ritz, 270 Or App at 100. And the court presumed that bloodalcohol evidence loses all of its evidentiary value when it reaches a BAC level 

of 0.0 percent. Id. at 100 n 4. But, without some evidentiary support, the use of 
Cite as 361 Or 781 (2017) 799

As a result, the record does not establish that the 

officers reasonably believed, at the time that they entered 

defendant’s home, that obtaining a warrant would have 

delayed preserving evidence that was dissipating. The state 

therefore failed to establish that the officers reasonably 

believed that they were faced with an exigency in this case. 

We recognize that, by deciding this case on the facts, we are 

not resolving the legal question that the parties have brought 

to us—namely, what factors should be considered in determining whether an exigency search is justified. However, 

because the state failed to establish the existence of an exigency, the state cannot justify its warrantless search as an 

exigency search, regardless of what other factors should be 

considered or how those factors should be weighed.

III. CONCLUSION

The decision of the Court of Appeals is reversed, 

and the case is remanded to the Court of Appeals for further 

consideration.

such presumptions improperly relieves the state of its burden to prove that officers reasonably believed that the blood-alcohol evidence was at risk of complete 

dissipation. See Baker, 350 Or at 647 (“The state has the burden of proving that 

circumstances existing at the time were sufficient to satisfy any exception to the 

warrant requirement.”).