Background
Stephen Michael Wich was convicted of unlawful possession of psilocybin. During a traffic stop, an officer observed Wich driving 86 mph in a 55-mph zone and immediately smelled alcohol coming from the car, which the officer believed was emanating from Wich’s breath. Wich said that he had consumed one beer about an hour earlier, and the officer also noticed a slight slur in his speech.
Wich moved to suppress evidence, arguing that the officer unlawfully extended the traffic stop by initiating a DUII investigation without reasonable suspicion. He also challenged the warrantless search of his car incident to arrest and asked the Court of Appeals to overrule State v. Krause. Separately, Wich sought a judgment of acquittal, arguing that the evidence did not establish that he knowingly possessed psilocybin mushrooms.
The Court’s Holding
The Oregon Court of Appeals affirmed. It held that the officer had reasonable suspicion of DUII when the officer began the criminal investigation. Wich’s speed—31 mph above the limit—permitted an inference of poor or impaired driving, and the strong odor of alcohol from his breath, considered together with the speeding, made the officer’s suspicion objectively reasonable. The court did not treat Wich’s “overly calm and relaxed” demeanor as supporting reasonable suspicion.
The court declined to overrule Krause, explaining that it had already rejected similar arguments. It also held that, viewing the evidence in the light most favorable to the state, a jury could find that Wich knew the mushrooms he possessed contained psilocybin. His separate challenge to the trial court’s reliance on ORS 167.238(1) was unpreserved, and because he did not request plain-error review, the court declined to consider it.
Key Takeaways
- Driving 31 mph over the speed limit, combined with a strong odor of alcohol from the driver’s breath, supplied reasonable suspicion to investigate DUII.
- An “overly calm and relaxed” demeanor did not contribute to the objective reasonable-suspicion analysis because motorists react differently to traffic stops.
- The evidence permitted a jury to find that Wich knowingly possessed mushrooms containing psilocybin, while his statutory argument failed because it was unpreserved and he did not seek plain-error review.
Why It Matters
The decision illustrates how Oregon courts assess reasonable suspicion from the totality of the circumstances: an odor of alcohol may be insufficient standing alone, but it can justify a DUII investigation when paired with driving conduct suggesting possible impairment. It also reinforces the importance of preserving specific objections to a trial court’s legal reasoning and expressly requesting plain-error review when preservation is lacking.
The opinion is a nonprecedential memorandum opinion under ORAP 10.30 and may be cited only as permitted by ORAP 10.30(1).