State v. Banks

Decision Date12 July 2017
Docket NumberA158466.
Citation286 Or.App. 718,401 P.3d 1234
Parties STATE of Oregon, Plaintiff-Respondent, v. Rodney BANKS, Sr., Defendant-Appellant.
CourtOregon Court of Appeals

William Uhle argued the cause for appellant. With him on the brief was Thuemmel, Uhle & Eder.

Timothy A. Sylwester, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before Tookey, Presiding Judge, and DeHoog, Judge, and Sercombe, Senior Judge.

SERCOMBE, S. J.

Defendant appeals a judgment of conviction for driving under the influence of intoxicants (DUII), ORS 813.010, reckless driving, ORS 811.140, and second-degree criminal mischief, ORS 164.354. Defendant assigns error to the trial court's denial of his motion to suppress evidence of his refusal to consent to a breath test of his blood alcohol content (BAC) that police requested pursuant to the "implied consent law." See ORS 813.100(1) ( "Any person who operates a motor vehicle upon premises open to the public or the highways of this state shall be deemed to have given consent, subject to the implied consent law, to a chemical test of the person's breath[.]"). He contends that evidence of his refusal should have been suppressed because admission of that evidence, pursuant to ORS 813.310,1 violated his right against self-incrimination under Article I, section 12, of the Oregon Constitution,2 and his right to be free from unreasonable searches and seizures under Article I, section 9, of the Oregon Constitution.3 The state responds that, under the circumstances of this case, it is well established that defendant's refusal to consent to the breath test was admissible at trial. On review for errors of law, State v. Holdorf , 355 Or. 812, 814, 333 P.3d 982 (2014), we affirm.

"In reviewing a denial of a motion to suppress, we are bound by the trial court's findings of historical fact that are supported by evidence in the record." Id. To the extent that the trial court did not make findings of fact, and where there are facts that could be decided in more than one way, we presume that the court made factual findings consistent with its ultimate conclusion. Id.

Here, the relevant facts are few and undisputed. Defendant was arrested for DUII and transported to a Portland Police Bureau holding facility. At the facility, Portland Police Officer Ladd asked defendant if he would be willing to take a breath test, to which defendant was "deemed to have given consent" under ORS 813.100(1), but defendant refused to take the test. Ladd then read defendant the statement of the "rights and consequences" under the implied consent law, as required by ORS 813.130(1). That statement informed defendant that, among other things, if he refused to take the breath test, "evidence of [his] refusal * * * may be offered against [him]," ORS 813.130(2)(a), his driving privileges would be suspended, ORS 813.130(2)(c), and he would be subject to a fine, ORS 813.130(2)(f). Ladd then asked defendant if he was willing to consent to the test, and defendant again refused. Defendant was subsequently charged with two counts of DUII, one count of reckless driving, and one count of second-degree criminal mischief. Prior to trial, the state dismissed one of the DUII counts.

Defendant moved to suppress any evidence of his refusal to take the breath test. Defendant argued that the evidence should be suppressed because, insofar as it allows the state to offer evidence of a defendant's refusal to consent to a breath test as substantive evidence of guilt at trial, ORS 813.100 is unconstitutional. According to defendant, allowing the state to use evidence of his refusal would violate his rights under Article I, section 12, because his refusal to consent was compelled testimonial evidence to be used against him in a criminal proceeding. Defendant also asserted that the use of that evidence would violate his rights under Article I, section 9, because it placed too high a burden on the exercise of his right to be free from unreasonable searches and seizures. The state responded that it is a "well-established principle of law" that evidence of a defendant's refusal to consent to a breath test is admissible at a DUII trial.

Following a hearing, the trial court denied defendant's motion to suppress. The court concluded that, under State v. Gefre, 137 Or.App. 77, 903 P.2d 386 (1995), rev. den., 323 Or. 483, 918 P.2d 848 (1996), evidence of a defendant's refusal to consent to a breath test is not subject to suppression if the defendant has no constitutional right to refuse the breath test because the seizure of that evidence is supported by probable cause and exigent circumstances. Thus, the court ruled that,

"to the extent you're not really arguing that there was a lack of probable cause in this case or a lack of exigent circumstances, that seemed to be the basis of their concept that the refusal is admissible because I know, from your perspective, they're incorrectly—the Court of Appeals is incorrectly assuming that—that that matters.
"So I guess for that reason then I will—although I understand your perspective, you made a good record here, I'm going to deny [the motion] based on the record we have and the arguments here today."4

Following a trial, a jury found defendant guilty of DUII. Defendant waived his right to a jury trial on the reckless driving and criminal mischief counts, and he was convicted by the court of those charges. The court entered a judgment consistent with those verdicts.

The parties reiterate their trial court arguments on appeal. Defendant does not dispute that the police had probable cause to believe that he had been driving under the influence of intoxicants and that the dissipation of alcohol in his blood was an exigent circumstance. Rather, he contends that "[t]he dissipation of alcohol as an exigency is irrelevant to the admissibility of a refusal to consent to a warrantless search and seizure." According to defendant, "[t]he implied consent statutes, * * * allowing [a search of defendant's BAC] and penalizing defendant for refusing the search," violate "defendant's Article I, section 9 [,] right to be free from unreasonable searches and seizures and his Article I, section 12 [,] right to remain silent."

We begin with defendant's Article I, section 12, argument. "Under Article I, section 12, of the Oregon Constitution, individuals may not be compelled to disclose their beliefs, knowledge, or state of mind"—referred to as "testimonial evidence""to be used in a criminal prosecution against them." State v. Fish, 321 Or. 48, 56, 893 P.2d 1023 (1995). The constitutional privilege against self-incrimination "appl[ies] to only testimonial evidence"; it does not apply to nontestimonial evidence related to the "defendant's physical characteristics, such as identity, appearance, and physical condition." State v. Tiner, 340 Or. 551, 561, 135 P.3d 305 (2006), cert. den., 549 U.S. 1169, 127 S.Ct. 1125, 166 L.Ed.2d 896 (2007). Evidence of the results of a breath test is not testimonial. A breath test yields only "physical evidence of intoxication," which is not testimonial, because it conveys nothing about the person's "beliefs, knowledge, or state of mind." State v. Nielsen, 147 Or.App. 294, 304, 936 P.2d 374, rev. den., 326 Or. 68, 950 P.2d 892 (1997). In contrast, evidence of a person's refusal to take a breath test is testimonial evidence because it "inferentially may communicate the person's belief" that he or she will fail the test. Fish, 321 Or. at 56, 893 P.2d 1023.

That defendant's refusal was testimonial in nature does not end our inquiry. The use of that evidence at trial would violate defendant's right against self-incrimination only if the state compelleddefendant to provide that testimonial evidence. See Or. Const, Art I, § 12 ("No person shall * * * be compelled* * * to testify against himself." (Emphasis added.)); Fish, 321 Or. at 56, 893 P.2d 1023 ("[c]oncluding that evidence regarding defendant's refusal to perform field sobriety tests is 'testimonial' does not end our inquiry" because " Article I, section 12, prohibits the state from compellingan individual to provide 'testimonial' evidence" (emphasis in original)). As such,

"[t]he dispositive issue is not whether evidence of the refusal is communicative but whether the communication is the result of governmental compulsion of the sort which Article I, section 12, forbids. The right not to testify against oneself does not prevent the state from using a defendant's out-of-court statements or other communicative activity as evidence. Rather, it prevents the state from requiringa defendant to provide such statements or activity. Thus, inculpatory statements to friends, relatives, accomplices and others are generally admissible if there is no improper governmental activity in procuring them. Statements to police or other authorities are also admissible if voluntarily made, either before custodial interrogation begins or, if made during custodial interrogation, after a knowing and voluntary waiver of Mirandarights."

State v. Green, 68 Or.App. 518, 523, 684 P.2d 575 (1984), over-ruled on other grounds by State v. Panichello, 71 Or.App. 519, 692 P.2d 720 (1984) (emphasis in original).

Here, the state did not compel defendant to provide his testimonial refusal to consent to the breath test. Fish is particularly instructive. In that case, the defendant moved to suppress evidence of his refusal to perform a field sobriety test. 321 Or. at 50, 893 P.2d 1023. The trial court granted that motion, but we reversed. Id. On review, the Supreme Court reversed our decision, concluding that the defendant had been compelled to provide the testimonial evidence of his refusal. Id. at 50-51, 893 P.2d 1023.

That determination depended on the court's conclusion that certain field sobriety tests themselves produced testimonial evidence. Id. at 60, 893 P.2d 1023....

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7 cases
  • State v. Banks
    • United States
    • Supreme Court of Oregon
    • 7 Febrero 2019
    ...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 vehic......
  • State v. Brandes
    • United States
    • Court of Appeals of Oregon
    • 24 Febrero 2022
    ...of his guilt. Defendant noted that, although this court had decided against his Article I, section 9, argument in State v. Banks, 286 Or.App. 718, 401 P.3d 1234 (2017) (Banks I), rev'd, 364 Or. 332, 434 P.3d 361 (2019), the Oregon Supreme Court had accepted review in that case to address th......
  • State v. Brandes
    • United States
    • Court of Appeals of Oregon
    • 24 Febrero 2022
    ...of his guilt. Defendant noted that, although this court had decided against his Article I, section 9, argument in State v. Banks, 286 Or.App. 718, 401 P.3d 1234 (2017) (Banks I), rev'd, 364 Or. 332, 434 P.3d 361 (2019), the Oregon Supreme Court had accepted review in that case to address th......
  • State v. Brandes
    • United States
    • Court of Appeals of Oregon
    • 24 Febrero 2022
    ...of his guilt. Defendant noted that, although this court had decided against his Article I, section 9, argument in State v. Banks , 286 Or. App. 718, 401 P.3d 1234 (2017) ( Banks I ), rev'd , 364 Or. 332, 434 P.3d 361 (2019), the Oregon Supreme Court had accepted review in that case to addre......
  • Request a trial to view additional results

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