FILED

NOT FOR PUBLICATION

NOV 19 2018

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

RONALD DOYLE, No. 17-35738

Plaintiff-Appellant, D.C. No. 1:16-cv-01376-MC

v.

MEMORANDUM*

CITY OF MEDFORD; PATRICK

DENNIS, Officer, #873; PAUL MELLGREN, Officer, #874,

Defendants-Appellees.

Appeal from the United States District Court for the District of Oregon Michael J. McShane, District Judge, Presiding

Submitted November 8, 2018** Portland, Oregon

Before: TALLMAN and IKUTA, Circuit Judges, and BOUGH,*** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Stephen R. Bough, United States District Judge for the Western District of Missouri, sitting by designation. Ronald Doyle appeals the district court’s grant of summary judgment for

defendants. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

The finding of the administrative law judge for the Oregon Department of

Motor Vehicles that Officer Mellgren lacked probable cause to arrest Doyle is not

entitled to preclusive effect under Oregon law. See State v. Ratliff, 744 P.2d 247,

249 (Or. 1987) (en banc).

Officer Mellgren’s observations that the odor of alcohol emanated from

Doyle or the vehicle, that Doyle had bloodshot, watery eyes, and that Doyle

exhibited slurred speech, combined with Doyle’s bizarre and disruptive roadside

behavior, were sufficient for a reasonable officer, relying on his experience and

training, to conclude that Doyle had been driving under the influence of alcohol.

See Schmerber v. California, 384 U.S. 757, 768–69 (1966); Hart v. Parks, 450

F.3d 1059, 1067 (9th Cir. 2006). Nor did Officer Mellgren’s probable cause

dissipate during Doyle’s detention because no new facts indicated that there was a

less than fair probability that Doyle had committed a crime. United States v.

Lopez, 482 F.3d 1067, 1073 (9th Cir. 2007). Doyle’s low BAC reading, and his

normal behavior at the police station, were consistent with the use of intoxicants

that rapidly dissipate in the body, and therefore did not establish that he had been

sober at the time of the arrest. See id. Because there is no genuine issue of

2 material fact that Officer Mellgren had probable cause to arrest Doyle and to

continue the arrest, the defendants were entitled to summary judgment on Doyle’s

false arrest claim. See Franklin v. Fox, 312 F.3d 423, 439 (9th Cir. 2002).

Defendants were entitled to summary judgment on Doyle’s judicial

deception claim because Doyle failed to show that Mellgren made a false statement

or a material omission in his probable cause affidavit. Ewing v. City of Stockton,

588 F.3d 1218, 1223–24 (9th Cir. 2009). Mellgren’s statement that he had

probable cause to arrest Doyle, was not a misstatement. In addition, none of the

alleged omissions was “material to the finding of probable cause,” id. at 1223

(quoting KRL v. Moore, 384 F.3d 1105, 1117 (9th Cir. 2004)), and nothing in the

record indicates that any alleged omissions were made intentionally or recklessly.

Summary judgment for defendants was likewise proper on Doyle’s state law

false imprisonment claim because there was probable cause under Oregon law for

the arrest, and that probable cause did not dissipate. See Gigler v. City of Klamath

Falls, 537 P.2d 121, 125–26 (Or. Ct. App. 1975). Mellgren had objective probable

cause to arrest Doyle where he left a tavern, committed a traffic infraction, and

presented bloodshot eyes and a strong odor of alcohol upon being stopped. State v.

Gilmour, 901 P.2d 894, 895–96 (Or. Ct. App. 1995). Mellgren also had subjective

3 probable cause, id., because there is no evidence that he relinquished his belief that

Doyle had been impaired at the time of arrest.

AFFIRMED.

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