City of Portland v. Stanley, M2795
| Decision Date | 27 July 1981 |
| Docket Number | No. M2795,M2795 |
| Citation | 631 P.2d 826,53 Or.App. 254 |
| Parties | CITY OF PORTLAND, Respondent, v. Thomas Edward STANLEY, Appellant. ; CA A20057. |
| Court | Oregon Court of Appeals |
Phillip M. Margolin, Portland, argued the cause and filed the brief for appellant.
Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem.
Before GILLETTE, P. J., and ROBERTS and YOUNG, JJ.
Defendant appeals his conviction of Driving Under the Influence of Intoxicants. ORS 487.540. He contends that the trial court erred in denying his motion in limine which requested the court to prohibit any comment on or references to defendant's refusal to take an intoxilyzer test after his arrest. Defendant argues that any reference to his refusal violates his constitutional right against self-incrimination. We conclude that evidence of defendant's refusal and the prosecutor's comment on that refusal was proper and, therefore, affirm.
Defendant was arrested for driving under the influence of intoxicants. After he was placed in custody he was taken to the traffic office and asked to take an intoxilyzer test. He refused. The arresting officer informed the defendant of the consequences of his refusal, including the fact that evidence of his refusal could be used against him at trial. 1 The defendant again refused to take the test.
At trial the arresting officer testified that the defendant refused to take the intoxilyzer test and that he informed the defendant of the consequences of his refusal. During closing argument, the prosecutor commented on the defendant's refusal. He stated:
In State v. Gardner, supra, n.1, we held that the admission into evidence of a person's refusal to take an intoxilyzer test does not violate the individual's privilege against self-incrimination. 2 If evidence of the defendant's refusal was properly admitted, the prosecutor's comment on the fact of that refusal...
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...would result from taking the test and failing it. Defendant's argument was answered contrary to her position in City of Portland v. Stanley, 53 Or.App. 254, 631 P.2d 826, rev. den. 291 Or. 771, 642 P.2d 308 (1981). There, the arresting officer testified that he had informed the defendant of......
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City of Portland v. Stanley
...308 642 P.2d 308 291 Or. 771 City of Portland v. Stanley NO. 28031 Supreme Court of Oregon Oct 20, 1981 53 Or.App. 254, 631 P.2d 826 ...