STATE v. MILLER, 120 Or. App. 349 (1993)

852 P.2d 895

T91-2991; CA A75011Oregon Court of Appeals.Argued and submitted March 31, 1993
Affirmed May 19, 1993

Appeal from District Court, Wasco County.

James Donnell, Judge.

Hari Nam S. Khalsa, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Sally L. Avera, Public Defender, Salem.

Thomas H. Denney, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General, Salem.

Before Warren, Presiding Judge, and Rossman and Edmonds, Judges.

ROSSMAN, J.

Affirmed.

Page 350

Page 351

ROSSMAN, J.

Defendant appeals her conviction of DUII, ORS 813.010, contending that the trial court erred in denying her motion to suppress. We affirm.

The pertinent facts are that Officer Bowlds saw defendant pull her vehicle over and stop, of her own volition, on the shoulder of a highway at a place that was posted for emergency parking only. He pulled in behind her, activated his flashing yellow lights, and called out to defendant to see if she needed assistance. Defendant, who had gotten out of her car and was walking away from Bowlds to the front of her vehicle, changed direction and walked up to him. Bowlds testified that, as defendant walked toward him,

“she appeared to be unsteady. She was swaying. As she got closer, I could see her face was flushed; and her eyes were droopy; and she was kind of sleepy in appearance.”

When he asked her if she was having problems with her vehicle, she replied, slowly, that she had stopped to stretch. Bowlds noticed a strong odor of alcoholic beverage on her breath and advised defendant of her rights. He ultimately arrested her.

Defendant contends that the trial court should have suppressed all evidence of Bowlds’ observations of her. She argues that, because Bowlds contacted her in a “community caretaking” capacity, his observations of apparent criminal activity must be suppressed as a product of an unauthorized stop, under the rule she derives from State v. Bridewell, 306 Or. 231, 759 P.2d 1054
(1988).[1]

Defendant’s reliance on Bridewell is misplaced. That case involved an entry onto the defendant’s premises. This case does not present us with the same kind and degree of intrusion into a constitutionally protected area. Here, the officer simply came upon a motorist who had stopped her vehicle of her own volition and approached her to ask if she needed assistance. The trial court properly concluded that the contact, up to the time when the officer acquired reason to

Page 352

inquire into defendant’s sobriety, had not been converted into a “stop” by the mere fact that the officer activated his flashing yellow lights and called out to defendant as she was walking away from him. See, e.g., State v. Gerrish, 311 Or. 506, 815 P.2d 1244
(1991); State v. Johnson, 93 Or. App. 242, 761 P.2d 1343 (1988) rev den 307 Or. 405 (1989); State v. Dubois, 75 Or. App. 394, 706 P.2d 588, rev den 300 Or. 451 (1985); State v. Tracy, 52 Or. App. 945, 630 P.2d 370, rev den 291 Or. 662 (1981).

Accordingly, we hold that the officer’s observations of defendant were not subject to suppression under the “community caretaking” rationale of State v. Bridewell, supra.[2]

Affirmed.

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