State v. Banks
Decision Date | 12 July 2017 |
Docket Number | A158466. |
Citation | 286 Or.App. 718,401 P.3d 1234 |
Parties | STATE of Oregon, Plaintiff-Respondent, v. Rodney BANKS, Sr., Defendant-Appellant. |
Court | Oregon 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.
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) ( ). 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 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.
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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State v. Banks
...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......
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State v. Brandes
...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......
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State v. Brandes
...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......
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State v. Brandes
...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......