State v. Gefre

• Decision Date: 27 September 1995
• Citation: 903 P.2d 386,137 Or.App. 77
• Parties: STATE of Oregon, Respondent, v. Curtis J. GEFRE, Appellant. Z127859; CA A82910.
• Court: Oregon Court of Appeals

Page 386

903 P.2d 386

137 Or.App. 77

STATE of Oregon, Respondent, v. Curtis J. GEFRE, Appellant.

Z127859; CA A82910.

Court of Appeals of Oregon.

Argued and Submitted Jan. 11, 1995.

Decided Sept. 27, 1995.

[137 Or.App. 78-A] John Henry Hingson, III, Oregon City, argued the cause and filed the brief for appellant.

Kaye E. Sunderland, Assistant Attorney General, argued the cause for respondent. With her on the brief were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General.

Before RIGGS, P.J., and LANDAU and LEESON, JJ.

LANDAU, Judge.

Defendant appeals his conviction for driving under the influence of intoxicants, ORS 813.010, assigning error to the trial court's denial of his motion to exclude evidence of his refusal to perform field sobriety tests and his refusal to submit to a breath test. We affirm.

We view the facts in the light most favorable to the state. State v. Brown, 310 Or. 347, 350, 800 P.2d 259 (1990). Gresham Police Officer Bunker saw defendant driving a truck during the evening of June 30, 1993. Defendant turned right without signaling and drove very close to the left-hand curb, almost hitting it. Defendant quickly over-corrected, swerving over the line dividing the two eastbound lanes. Bunker was joined by Officer Gerkman, and the two followed defendant for four or five blocks. During that time, defendant weaved in and out of his lane. Gerkman turned on his overhead lights, signaling defendant to stop. After some time, defendant pulled off the road and came to a stop, but then coasted an additional ten feet before making a final stop.

The officers spoke to defendant. Bunker could not understand defendant's speech, as it was "low," so he asked defendant to spit out the tobacco that he had in his mouth. Defendant made a "token" effort to spit out the tobacco. Gerkman saw that defendant had spit and tobacco on his upper lip and along his right hand. As Bunker moved closer, defendant turned away. Both officers smelled a strong odor of alcohol over the tobacco and noticed that defendant's eyes were bloodshot. Gerkman noticed that defendant swayed as he stood and walked. Upon inquiry, defendant stated that he had had nothing to drink that evening. When the officers challenged that statement, defendant insisted that he had consumed no alcohol.

After informing defendant of his rights, Bunker asked defendant if he would submit to unspecified field sobriety tests. Defendant said, "No." Defendant was then arrested and taken to the police station. At the station, defendant was again informed of his rights. He was asked to submit to a breath test and refused.

Defendant was charged with driving under the influence of intoxicants. Before trial, defendant moved to suppress evidence of his refusal to submit to field sobriety tests and his refusal to submit to a breath test. Defendant argued, among other things, that the admission of those refusals would violate his right against self-incrimination contained in Article I, section 12, of the Oregon Constitution. The trial court denied the motion, and the case proceeded to trial before a jury.

At trial, the state elicited testimony as to the circumstances of defendant's arrest. On cross-examination, defense counsel elicited testimony from Bunker that some of defendant's driving had been satisfactory; he had stopped at a red light and made some turns without problems. Gerkman testified that he could not recall any specific words that defendant had slurred. That cross-examination testimony aside, defendant offered no evidence in his defense.

In closing, the prosecution argued:

"Other evidence we have are the defendant's refusal on both the field sobriety tests and the breath test. On the field sobriety tests, he was warned that evidence of a refusal to take these tests would be used against him. He knew that, and he refused nevertheless. What does that tell you about the defendant's state of mind? So afraid was he of the results of any possible field sobriety tests that he was willing to have evidence of refusing to take those tests before you today rather than have you see the results of those field sobriety tests.

" * * * * *

"Now, the defense is liable to tell you, well, don't consider those refusals on the field sobriety tests, and certainly don't consider the refusal to take the intoxilyzer tests, because that would require you to engage in speculation. Ladies and gentlemen, that's not speculation, and the implied consent form proves that it's not speculation, because * * * this implied consent form tells you that evidence may be offered against, and certainly that evidence is being offered against the defendant today, and you're entitled to consider that.

" * * * [Y]ou're certainly entitled to consider the refusal of the field sobriety tests and the refusal on the breath test as the very powerful evidence that it is indicating the guilt of the defendant."

The jury found defendant guilty. On appeal, defendant assigns error to the trial court's denial of his motion to suppress evidence of his refusal to submit to field sobriety tests and his refusal to submit to a breath test.

We first address the admission of evidence of defendant's refusal to submit to a breath test. Defendant asserts that that evidence is irrelevant, because the state is not required to prove consciousness of guilt. The state contends that evidence of defendant's refusal is relevant to the issue of whether defendant was intoxicated at the time of his arrest. The state is correct.

In State v. Anderson, 53 Or.App. 246, 252, 631 P.2d 822 (1981), we held that "the inferences to be drawn from defendant's refusal are * * * relevant to the issue of whether or not he was intoxicated at the time of his arrest." That the state is not required to prove defendant's "consciousness of guilt" does not mean that evidence of that conscience has no tendency to establish defendant's condition at the time of his arrest. Id.; see also State v. Gainer, 70 Or.App. 199, 204, 689 P.2d 323 (1984); City of Portland v. Stanley, 53 Or.App. 254, 256-57, 631 P.2d 826, rev. den. 291 Or. 771, 642 P.2d 308 (1981), cert. den. 455 U.S. 952, 102 S.Ct. 1457, 71 L.Ed.2d 668 (1982).

Defendant next argues that the trial court erred in admitting evidence of his refusal to submit to a breath test, because the probative value of that evidence is substantially outweighed by the danger of unfair prejudice. OEC 403. Defendant does not explain how he was unfairly prejudiced by the admission of that evidence; he merely concludes that that is so. The state argues that ORS 813.310 unambiguously permits evidence of a refusal to take a breath test to be admitted, without reference to whether its probative value is substantially outweighed by its prejudicial effect.

Concerning the same argument, we noted in Anderson that the legislature already has determined that evidence of a refusal to take a breath test may be admitted into evidence. We then said:

"This is a matter for the trial court to decide in the first instance in the light of all the circumstances of the particular case. * * * We do note that, in our view, * * * it will be a rare case indeed in which [the] defendant is entitled to have this evidence kept from the trier of fact. The legislature has declared this evidence to be relevant; trial courts should not ignore the legislative policy."

53 Or.App. at 252, 631 P.2d 822. This is not such a rare case, in which evidence of a refusal must be excluded. Defendant's position at trial was that the state had failed to offer evidence of his intoxication, that its investigation was "incomplete" and that proper investigation by the police would have included such evidence. The state offered evidence that it had attempted to investigate further but was thwarted by defendant's refusal. Under the circumstances, we cannot say that the trial court's decision was improper.

Defendant next argues that the admission of his refusal to submit to a breath test violates his right against self-incrimination embodied in Article I, section 12, of the Oregon Constitution. That section provides, in part:

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

Defendant recognizes that, in State v. Ratliff, 82 Or.App. 479, 485, 728 P.2d 896 (1986), aff'd on other grounds 304 Or. 254, 744 P.2d 247 (1987), we said:

"The privilege against compelled self-incrimination contained in Article I, section 12, of the Oregon Constitution, does not prevent the admission of evidence that a defendant has refused to take a breath test. State v. Earley, 78 OrApp 646, 717 P2d 1228 (1986); State v. Green, 68 OrApp 518, 684 P2d 575, rev den 297 Or 601, 687 P2d 795 (1984) [overruled on other grounds in State v. Panichello, 71 OrApp 519, 525, 692 P2d 720 (1984) ]; State v. Gardner, 52 OrApp 663, 629 P2d 412, rev den 291 Or 419, 634 P2d 1347 (1981)."

Nevertheless, defendant insists that that statement is not dispositive, because,

"most of the cases relied upon in support of that statement do not comply with the 'plain statement' rule of Michigan v. Long, 463 US 1032 [1039-41], 103 SCt 3469, 3476, 77 LEd2d 1201 (1983)."

The state argues that the admissibility of a defendant's refusal to submit to a breath test is well settled under Oregon case law and that compliance with the "plain statement" rule is irrelevant. We agree with the state.

The plain statement rule refers to a jurisdictional policy of the United States Supreme Court. Generally, the Court will not review a state court judgment when there is a nonfederal ground that independently and adequately supports the judgment. Long, 463 U.S. at 1038, 103 S.Ct. at 3474. When a state court decision appears to rely...