State v. Fish

• Decision Date: 27 April 1995
• Parties: STATE of Oregon, Respondent on Review, v. Boyd Alan FISH, Petitioner on Review. DC 90-11996; CA A67743; SC S40015.
• Court: Oregon Supreme Court

Page 1023

893 P.2d 1023

321 Or. 48

STATE of Oregon, Respondent on Review, v. Boyd Alan FISH, Petitioner on Review.

DC 90-11996; CA A67743; SC S40015.

Supreme Court of Oregon,

In Banc.

Argued and Submitted Aug. 31, 1993.

Reargued and Resubmitted Nov. 2, 1994.

Reassigned Nov. 3, 1994.

Decided April 27, 1995.

[321 Or. 49] John Henry Hingson III, Oregon City, argued the cause and filed the petition on behalf of petitioner on review.

[321 Or. 49-A] Jonathan H. Fussner, Asst. Atty. Gen., Salem, argued the cause on behalf of respondent on review.

UNIS, Justice.

On May 24, 1990, defendant was driving his Ford Bronco southbound on a public highway in Clackamas County. A deputy sheriff, who was driving in the opposite lane of travel from defendant, observed defendant's vehicle swerve. The deputy turned around and signaled defendant to pull his vehicle to the side of the road. When the deputy approached defendant's vehicle, he smelled alcohol, saw that defendant's eyes were "bloodshot and watery," and noticed a can of beer on the floor of the vehicle next to the driver's seat. Defendant told the deputy that he had consumed "three beers." The deputy asked defendant to step out of his vehicle and perform field sobriety tests. The deputy advised defendant that, if defendant refused to perform the field sobriety tests, his refusal could be used against him as evidence in court. Defendant refused to perform the tests. He was arrested and charged with the crime of driving under the influence of intoxicants (DUII), ORS 813.010.

Before trial, defendant moved to suppress evidence of his refusal to perform the tests. Defendant argued that the deputy did not comply with statutory requirements in advising defendant of the consequences of his refusal. Defendant also argued that the admission of his refusal to perform field sobriety tests violated his rights against self-incrimination under Article I, section 12, of the Oregon Constitution and the Fifth and Fourteenth Amendments to the United States Constitution. The district court granted defendant's motion on both statutory and constitutional grounds.

Pursuant to ORS 138.060(3), the state appealed the district court's order suppressing evidence of refusal. The Court of Appeals reversed the district court's order and remanded the case for further proceedings. The court rejected defendant's argument regarding the adequacy of the deputy's advice of consequences, holding that the deputy's words " 'substantially convey[ed]' the necessary information" required by the statute. State v. Fish, 115 Or.App. 609, 613, 839 P.2d 278 (1992) (quoting OAR 257-25-015(2)). The court also held that the admission of evidence of defendant's refusal to perform field sobriety tests did not violate his rights against self-incrimination. Id. at 614, 839 P.2d 278. We allowed defendant's petition for review and now reverse the decision of Defendant challenges the admission of his refusal to perform the field sobriety tests on a number of grounds, both statutory and constitutional. We shall address defendant's subconstitutional argument before considering his constitutional arguments. See State v. Stevens, 319 Or. 573, 579, 879 P.2d 162 (1994) (applying that methodology).

the Court of Appeals and affirm the order of the district court.

Defendant contends that the deputy failed to comply with ORS 813.135 and ORS 813.136 and that, therefore, evidence of defendant's refusal to perform field sobriety tests should be suppressed. ORS 813.135 ¹ requires that, before field sobriety tests are administered to a person whom a police officer reasonably suspects to be under the influence of intoxicants, the person "shall be informed of the consequences of refusing to take or failing to submit to the tests under ORS 813.136." Those consequences are as follows:

"If a person refuses or fails to submit to field sobriety tests as required by ORS 813.135, evidence of the person's refusal or failure to submit is admissible in any criminal or civil action or proceeding arising out of allegations that the person was driving while under the influence of intoxicants." ORS 813.136.

In this case, the deputy testified that he "advised [defendant] that he had the right to refuse the field sobriety test; that if he did refuse the test, that could be used against him as evidence in court." We conclude that the advice of consequences complied with ORS 813.135 and 813.136. ²

ORS 813.135 requires that a suspect be "informed of the consequences of refusing to take or failing to submit to the tests under ORS 813.136." No particular language is required by the statute. In this case, the significant difference between the language of the statute and the warning given to defendant is that the deputy stated that the refusal could be used against defendant "in court," rather than "in any criminal or civil action or proceeding arising out of allegations To determine whether the deputy's advice of consequences complied with ORS 813.135, we must determine what the legislature intended by requiring police officers to give the advice of consequences. In State v. Trenary, 316 Or. 172, 850 P.2d 356 (1993), this court discussed the legislative purpose of the advice of consequences required by ORS 813.135:

that the person was driving while under the influence of intoxicants."

"The main purpose of the [advice of consequences required by] ORS 813.135 was not to create a right, but to bring further pressure on suspected intoxicated drivers to take the field sobriety tests. The statute aimed to advise drivers who may be disposed not to perform the tests that, if they refused, evidence of the refusal would be admissible, provided that they were warned of the consequences of the refusal." Id. at 177, 850 P.2d 356. (Emphasis in original.)

This court further stated that the legislature's reason for enacting ORS 813.135 and 813.136 was "to compel drivers to take field sobriety tests." Id. at 177-78, 850 P.2d 356. In light of the purpose of the advice of consequences required by ORS 813.135, an officer's advice of consequences complies with ORS 813.135 if it adequately informs the driver of the consequences of refusal so as to bring further pressure on the driver to perform the tests.

In this case, the advice of consequences given was no less effective in bringing pressure upon defendant than if the deputy had used the exact words of the statute. Under the facts of this case, we conclude that the warning given by the deputy sufficiently informed defendant of the consequences of refusal so as to comply with the requirements of ORS 813.135.

We turn now to defendant's constitutional arguments. Defendant argues that the admission of his refusal to perform the field sobriety tests would violate his rights against compelled self-incrimination under the state and federal constitutions. We first consider defendant's assertions under the Oregon Constitution. See State v. Kennedy, 295 Or. 260, 262, 666 P.2d 1316 (1983) (stating methodology).

Article I, section 12, of the Oregon Constitution provides in part:

"No person shall be * * * compelled in any criminal prosecution to testify against himself."

The right against compelled self-incrimination applies "to any kind of judicial or nonjudicial procedure in the course of which the state seeks to compel testimony that may be used against the witness in a criminal prosecution." State v. Langan, 301 Or. 1, 5, 718 P.2d 719 (1986). Thus, to receive protection under the self-incrimination clause of Article I, section 12, a person's statement or conduct must (1) be "testimonial" evidence, (2) be "compelled," and (3) be evidence that could be used against the person in a criminal prosecution.

We therefore must determine whether evidence of defendant's refusal to perform field sobriety tests is "testimonial" evidence under Article I, section 12. For purposes of the right against self-incrimination, "testimonial" evidence is not limited to in-court testimony under oath. Rather, the label "testimonial" is simply shorthand for the type of evidence that is subject to the right against compelled self-incrimination. To understand the scope of the protection provided by the right against compelled self-incrimination, we examine the history and purpose underlying the right.

Article I, section 12, of the Oregon Constitution was based on Article I, section 14, of the Indiana Constitution of 1851. Charles Henry Carey, The Oregon Constitution 468 (1926). Those provisions are similar to provisions that appear in the constitutions of 48 states. John William Strong, ed., 1 McCormick on Evidence § 115, at 425 (4th ed 1992). Although the wording of the different constitutional provisions varies, the variations commonly are not considered to convey different meanings because the provisions share a common origin. John Henry Wigmore, 8 Wigmore on Evidence § 2263, at 378 (McNaughton rev 1961). The right against compelled self-incrimination was firmly established in the American colonies by the mid-eighteenth century. Leonard W. Levy The right against compelled self-incrimination was imported to the United States as a part of the common law of England. Id. at 368. The right developed in England in the mid-seventeenth century. Id. at 301-32. The right against compelled self-incrimination had its roots in opposition to the oath ex officio, a procedure used by the ecclesiastical courts in England that required the accused, without having been formally charged or informed of the identity of his or her accusers, to answer questions under oath, the purpose of which was to extract a confession. Id. at 47. Opposition to that inquisitorial procedure increased when it was later adopted by the courts of the Star Chamber and of the High Commission, which used the oath to enforce political and religious conformity with views of the crown. Strong, 1 McCormick on Evidence § 114, at 422. In 1641, in response to abuses whereby individuals...