OR: Defendant was not seized by officer waking him up at the wheel

Officer did not seize defendant when the officer woke him up in his car. By the time defendant was ordered out of the car, the officer had reasonable suspicion of intoxication. Sivik v. Driver & Motor Vehicle Servs. Div., 235 Ore. App. 358, 231 P.3d 1177 (2010):

Here, however, it is clear that, when Mills awakened petitioner and asked him if he was in distress, the encounter was mere conversation by anybody’s standard. Mills did not interfere with petitioner’s freedom of movement until he asked petitioner to step out of his van. By that time, he had developed a suspicion that petitioner had been driving while intoxicated, and that suspicion was reasonable; he had observed petitioner drive into the lot with the wheels of his van kicking up gravel, pull to a halt in front of a closed coffee kiosk, and slump over the steering wheel. Before actually conversing with petitioner, Mill had detected a strong odor of alcohol emanating from the van. Although he testified that he did not develop probable cause to believe that petitioner had been driving while intoxicated until after petitioner stepped out of the van, he also testified that he had developed a suspicion before making contact. The stop was lawful, and the ALJ did not err in rejecting petitioner’s argument to the contrary.

The stop was justified either as a Terry stop or a traffic offense, and consent followed almost immediately. “This is about as brief as an investigation can be without having contraband in plain view.” State v. Brand, 309 S.W.3d 887 (Mo. App. 2010).*