§ 4.2 Preliminary Issues

• Library: Criminal Law in Oregon (OSBar) (2022 Ed.)

§ 4.2 PRELIMINARY ISSUES

Oregon statutes regulate the way government authorities may collect evidence to be used against a criminal defendant. However, ORS 136.432, effective June 12, 1997, and applicable to criminal actions pending or commenced on or after December 5, 1996 (Or Laws 1997, ch 313, §§ 1, 38), limits the circumstances in which a defendant may assert a violation of a statute to obtain suppression of evidence. It provides:

A court may not exclude relevant and otherwise admissible evidence in a criminal action on the grounds that it was obtained in violation of any statutory provision unless exclusion of the evidence is required by:

(1) The United States Constitution or the Oregon Constitution;

(2) The rules of evidence governing privileges and the admission of hearsay; or

(3) The rights of the press.

This statute limits suppression as a remedy for a statutory violation when the violation does not also violate the state or federal constitution, rules of evidence, or the rights of the press. See State v. Watson, 353 Or 768, 777-78, 305 P3d 94 (2013). By the statute's terms, for evidence to come within the scope of ORS 136.432, it must be "otherwise admissible." See State v. Jayne, 173 Or App 533, 537 & n 3, 24 P3d 920 (2001) (urinalysis screening performed without confirmatory quantitative testing was properly suppressed under OEC 403 (ORS 40.160) when the state failed to lay a proper foundation).

For instance, in State v. Silbernagel, 229 Or App 688, 691, 215 P3d 876 (2009), the court held that because there is no express statutory remedy for violations of ORS 813.100 and ORS 813.140 (which allow the police to obtain a blood alcohol test only if the driver is unconscious or expressly consents to the test), evidence obtained in violation of those statutes is not subject to suppression.

However, if a statute expressly provides for exclusion of evidence as a remedy for a statutory violation, then ORS 136.432 is inapplicable, and suppression continues to be the remedy. See State v. Bloom, 216 Or App 245, 249, 172 P3d 663 (2007), rev den, 344 Or 280 (2008); State v. Thompson-Seed, 162 Or App 483, 488-89, 986 P2d 732 (1999). This is so because ORS 136.432 was intended to limit statutory suppression to legislatively authorized suppression, not judicially crafted suppression. Thompson-Seed, 162 Or App at 488-89.

NOTE

Statutes that provide for suppression of evidence as a remedy for a violation include ORS 41.910 and ORS 133.721 to 133.739 (relating

...