Submitted June 30, 2017.
County Circuit Court 150398CR; J. Burdette Pratt, Senior
G. Lannet, Chief Defender, Criminal Appellate Section, and
Sarah Laidlaw, Deputy Public Defender, Offce of Public
Defense Services, fled the brief for appellant.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Joanna L. Jenkins, Assistant Attorney General,
fled the brief for respondent.
Tookey, Presiding Judge, and Egan, Chief Judge, and Hadlock,
Summary: Defendant appeals a judgment of conviction for
driving under the influence of intoxicants (DUII), ORS
813.010. On appeal, defendant contends that the trial court
erred when it overruled a defense objection to the
prosecutor's statements during closing arguments.
Defendant argues that the statements improperly shifted the
burden of proof from the state to the defendant.
Held: The prosecutor's statements, taken in
context, did not misstate the law and did not impermissibly
shift the burden of proof. Therefore, the trial court did not
abuse its discretion in overruling the defense objection.
Or.App. 528] EGAN, C. J.
appeals a judgment of conviction for driving under the
influence of intoxicants (DUII), ORS 813.010.We write solely to
address defendant's first assignment of error: that the
trial court erred when it overruled an objection to a
statement by the prosecutor during closing arguments.
Defendant contends that the statement improperly shifted the
burden of proof from the state to defendant. For the reasons
below, we affirm.
Police Officer Brewer stopped defendant's vehicle because
he saw it cross over the fog line. Brewer told defendant that
he had failed to stay within his lane. Defendant, who had two
passengers in his car, told Brewer, "We were just
bullshitting." Brewer asked defendant for his license,
registration, and proof of insurance. Brewer noticed that
defendant's speech was slurred and his eyes were red,
watery, and bloodshot. Brewer also smelled the odor of
alcohol. Brewer asked defendant if he had consumed any
alcohol, and defendant said that, earlier that day, he had
drank one beer with a cheeseburger. Brewer returned to his
vehicle to check defendant's driving status and to call
for backup to help conduct a DUII investigation.
Brewer asked defendant to step out of the car. Defendant did,
but he stumbled and had to use the bed of the pickup to hold
himself up. Brewer could smell a strong odor of alcohol
coming from defendant's breath. When Deputy Heatherwick
arrived as backup, she saw defendant swaying while he was
standing. Brewer asked defendant if he would be willing to
perform field sobriety tests. Defendant initially asked why
he had to do that, but after Brewer again described the
observations he had made and explained that he thought
defendant might be too impaired to drive, defendant said,
"What do you want me to do?" Brewer understood that
as an agreement to do the tests.
beginning the tests, defendant told Brewer that he had a bad
left knee. Brewer first administered a [296 Or.App. 529]
horizontal gaze nystagmus test. Defendant turned his head
contrary to Brewer's instructions and held his breath
because Brewer "didn't tell him he could
breathe." Ultimately, defendant exhibited six out of six
possible signs of impairment on that test. Brewer next began
to administer the walk-and-turn test. However, defendant was
unable to stay in the instructed position long enough to hear
Brewer's instructions and watch a demonstration.
Defendant also started the test before he was told to do so,
was unable to walk heel-to-toe according to Brewer's
directions, and raised his hands more than six inches away
from his sides. During the test, defendant stopped and told
Brewer that he was "having problems with his left
knee" and "didn't think he could do the test on
uneven ground." Brewer did not believe the ground was
uneven and did not "notice any mounds or potholes or
anything like that." But defendant said he
"didn't feel comfortable taking the test," so
Brewer stopped the test before defendant had completed it.
Next, Brewer began to administer the one-leg stand, which
involves standing on one leg for 30 seconds. Defendant put
his foot down within 10 seconds and asked Brewer, "Why
don't you just take me in?"
point, Brewer asked defendant if he would "be willing to
perform a couple of other tests that weren't as physical
because of the complaints of his knee"-a counting test
and an alphabet test. Defendant completed the tests but made
mistakes in both. "Putting everything together,"
Brewer believed defendant was "too impaired to be
operating a vehicle," so he arrested him for DUII and
took him to the Harney County Jail. At the jail, Brewer asked
defendant to take a breath test and advised him of the
consequences for refusing to take the test. Defendant refused
to take the test and said, "I had a beer with my
cheeseburger. I can't pass the test."
pleaded guilty to the violation of refusing to take a test
for intoxicants, ORS 813.095, and went to trial on the charge
of DUII. At trial, Brewer and Heatherwick testified. During
closing arguments, the state emphasized that defendant did
not complete two of the field sobriety tests. The prosecutor
[296 Or.App. 530] "He doesn't complete the
walk-and-turn. He chooses to not-he chooses to keep that
evidence from the jury. He doesn't complete the one-leg
stand. He chooses ...