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State v. Banks

Court of Appeals of Oregon

July 12, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
RODNEY BANKS, SR., Defendant-Appellant.

          Argued and submitted April 5, 2016.

         Multnomah County Circuit Court 140130317 Michael A. Greenlick, Judge.

          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.

         Case Summary:

         Defendant appeals a judgment of conviction for driving under the influence of intoxicants, ORS 813.010, reckless driving, ORS 811.140, and second-degree criminal mischief, ORS 164.354. He 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 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 violated his right against self-incrimination under Article I, section 12, of the Oregon Constitution, and his right to be free from unreasonable searches and seizures under Article I, section 9, of the Oregon Constitution.

         Held:

         The state's use of the evidence of defendant's refusal to consent to a breath test did not violate his right against compelled self-incrimination because the state did not compel defendant to provide his testimonial refusal to consent to the breath test. Nor did the use of the evidence of defendant's refusal violate his right to be free from unreasonable searches and seizures because the request for consent was reasonable, as it was supported by probable cause and exigent circumstances. Thus, the trial court did not err in denying defendant's motion to suppress.

         Affirmed.

         [286 Or.App. 719] 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.

         [286 Or.App. 720] 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 ...


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