State v. Banks, 020719 ORSC, SC S065180

Docket Nº:SC S065180
Opinion Judge:WALTERS, C. J.
Party Name:STATE OF OREGON, Respondent on Review, v. RODNEY BANKS, SR., Petitioner on Review. 364 Or. 332 (2019)
Attorney:Ben Eder, Thuemmel Uhle & Eder, Portland, argued the cause and fled the brief for petitioner on review. Timothy A. Sylwester, Assistant Attorney General, Salem, argued the cause and fled the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin ...
Judge Panel:Before Walters, Chief Justice, and Balmer, Nakamoto, Flynn, Duncan, and Nelson, Justices, and Kistler, Senior Justice pro tempore. KISTLER, S. J., concurring. BALMER, J., dissenting. Nakamoto, J., joins in this dissent.
Case Date:February 07, 2019
Court:Supreme Court of Oregon
 
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364 Or. 332 (2019)

STATE OF OREGON, Respondent on Review,

v.

RODNEY BANKS, SR., Petitioner on Review.

SC S065180

Supreme Court of Oregon

February 7, 2019

Argued and submitted May 4, 2018

On review from the Court of Appeals. [*] CC 140130317, CA A158466

Ben Eder, Thuemmel Uhle & Eder, Portland, argued the cause and fled the brief for petitioner on review.

Timothy A. Sylwester, Assistant Attorney General, Salem, argued the cause and fled the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Walters, Chief Justice, and Balmer, Nakamoto, Flynn, Duncan, and Nelson, Justices, and Kistler, Senior Justice pro tempore. [**]

[364 Or. 333] Case Summary: Defendant was arrested for DUII and, when asked, refused a police offcer's request that he "take a breath test" under the "implied consent law." Defendant's refusal was subject to use as evidence against him under ORS 813.310, and he fled a motion to suppress such use, arguing that his refusal was an invocation of his right not to consent to a warrantless search. The trial court denied defendant's motion, and defendant was convicted of DUII. The Court of Appeals affrmed. Held: Because the implied-consent statutes permit an offcer to ask for-and allows the state to punish a driver's refusal to provide-both physical cooperation with breath test under ORS 813.100 and constitutionally-sig-nifcant consent to search, the state has the burden to establish that an offcer's request that a driver submit to a breath test was only a request for the former and could not reasonably be understood as a request for the latter. Here, the state failed to meet its burden, and the existence of another warrant exception did not make defendant's refusal to provide consent admissible against him.

[364 Or. 334] WALTERS, C. J.

Defendant was arrested for driving under the influence of intoxicants (DUII) and, when asked, refused to take a breath test, which would have revealed the percentage of alcohol in his blood. For the reasons that follow, we conclude that Article I, section 9, of the Oregon Constitution prohibited the state from using defendant's refusal as evidence when it prosecuted him for that crime. We reverse the contrary decision of the Court of Appeals, State v. Banks, 286 Or.App. 718, 401 P.3d 1234 (2017), and the judgment of the circuit court.

I. BACKGROUND

The facts in this case are undisputed.1 Defendant drove his vehicle into a fence one night in Portland. Paramedics and law enforcement responded to the scene, evaluated defendant, and determined that he was he was intoxicated. Defendant was arrested and transported to the police station, where officer Ladd was waiting. Ladd informed defendant that he had been in a crash and was at the police station because he "smelled of an alcoholic beverage pretty strongly." Ladd explained that he was "going to read [defendant] some information" and that he would "like [defendant] to open [his] mouth." When Ladd asked defendant, "Can I look in your mouth," defendant responded, "No." Ladd then explained that, "if you don't [open it], then I can't help you maybe take a breath test." After defendant responded that he would not open his mouth, Ladd read defendant the "rights and consequences" required by law. Ladd explained that defendant was "about to be asked to submit to a breath test * * * under the implied consent law," and he provided information on the consequences for refusing or failing the test, including that his refusal to submit to the breath test "may be offered against [him]." After reading [364 Or. 335] the form, Ladd asked defendant, "[W]ill you take a breath test?" Defendant responded that he would not. Ladd did not obtain defendant's blood alcohol content (BAC). Defendant was charged with DUII, reckless driving, and criminal mischief.

Before trial, defendant moved to suppress evidence of his refusal to consent to the breath test. His position was that use of his refusal as substantive evidence of his guilt, as permitted under ORS 813.310, is unconstitutional. Defendant argued that use of his refusal would violate his right against self-incrimination under Article I, section 12, and his right against unreasonable searches and seizures under Article I, section 9. With respect to the latter, defendant argued that the use of his refusal as evidence as of his guilt placed too great a burden on his exercise of his Article I, section 9, right. The trial court denied the motion, the state presented evidence of defendant's refusal to support the inference that defendant knew he was intoxicated, and defendant was convicted of DUII.

Defendant appealed his judgment of conviction, and the Court of Appeals affirmed. Banks, 286 Or.App. 719. On the Article I, section 9, issue, the only issue that we address, 2the Court of Appeals explained that Ladd had a lawful right to conduct a warrantless seizure and search[3] based on a warrant exception-the existence of probable cause and exigent circumstances. Id. at 727. As a result, the court reasoned, defendant had no right to refuse to consent to that search, and his right against unreasonable searches and seizures was not violated by the use of his refusal as evidence at trial. Id.

[364 Or. 336] Defendant sought review in this court, which we allowed. In this court, defendant does not argue that Ladd did not have probable cause or that exigent circumstances did not exist to permit a warrantless search of his breath. Instead, he argues, as he did in the proceedings below, that his refusal to take a breath test was an invocation of his right under Article I, section 9, of the Oregon Constitution to refuse to give his consent to a warrantless search. That exercise of a constitutional right, he submits, cannot be used as substantive evidence of his guilt and may not be commented on at trial without violating that constitutional provision.

The state does not take issue with that latter proposition. The state acknowledges that, "as a general rule, a person's choice to refuse to consent to a warrantless search and seizure is not admissible as substantive evidence against him." See, e.g., State v. Smallwood, 277 Or 503, 505-06, 561 P.2d 600 (1977) (noting that it is "usually reversible error to admit evidence of the exercise by a defendant of the rights which the constitution gives him if it is done in a context whereupon inferences prejudicial to the defendant are likely to be drawn by the jury"); State v. Moller, 217 Or.App. 49, 51, 174 P.3d 1063 (2007) (error to admit evidence of the defendant's refusal to consent to a search of his car); United States v. Moreno, 233 F.3d 937, 941 (7th Cir 2000) (noting cases indicating that government cannot use refusal to consent to a search of home as evidence that person knew search would produce incriminating evidence); United States v. Thame, 846 F.2d 200, 207 (3rd Cir), cert den, 488 U.S. 928 (1988) (error for prosecutor to argue that defendant's refusal to provide consent to search constituted evidence of his guilt); State v. Larson, 788 N.W.2d 25, 32-33 (Minn 2010) (error to allow the introduction of defendant's refusal to consent to DNA testing as evidence of guilt); State v. Jennings, 333 NC 579, 604-05, 430 S.E.2d 188, 201 (1993) (error to allow officers to testify that defendant refused to allow search of hotel room and car); Padgett v. State, 590 P.2d 432, 434 (Alaska 1979) (error to admit evidence of the defendant's refusal to consent to search of car); Curry v. State, 217 Ga App 623, 625-26, 458 S.E.2d 385, 386-87 (1995) (evidence of defendant's refusal to consent to surgery erroneously admitted).

[364 Or. 337] The state's response, instead, is that that general rule is not implicated here for three reasons. First, the state contends, under the implied-consent statutes, defendant agreed, by driving on a public highway, to submit to a breath test if arrested for DUII and, therefore, did not have a constitutional right at the time of arrest to refuse to provide the consent that Ladd requested. Second, the state argues, defendant's refusal was not an invocation of a constitutional right. When Ladd asked defendant to take to a breath test, he was not asking defendant to waive his Article I, section 9, right; rather, he was seeking defendant's physical cooperation and submission to a breath test that Ladd had lawful authority to conduct. Third, the state asserts, even if defendant's refusal was an invocation of a constitutional right, it can be used against him because Ladd had another lawful basis for obtaining a breath sample from defendant without a warrant and without his consent-probable cause and exigent circumstances. We address each of those arguments in succession.

II. ANALYSIS

A. Defendant had a legal right to...

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