In a DUI case, the state did not show exigent circumstances to enter defendant’s home to take him into custody to then have to seek a search warrant for his blood anyway. State v. Ritz, 361 Ore. 781, 2017 Ore. LEXIS 549 (Aug. 10, 2017), reversing 270 Ore. App. 88, 347 P.3d 1052 (2015):
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, 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. 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 Ore. at 260 (“[W]e cannot presume the existence of other favorable facts; we must confine our review to the record made.” (Quotation omitted.)).