and submitted September 19, 2019
Multnomah County Circuit Court 050951965; Christopher A.
Krohn, Deputy Public Defender, argued the cause for
appellant. Also on the briefs was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Offce of Public Defense
Timothy A. Sylwester, Assistant Attorney General, argued the
cause for respondent. Also on the briefs were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman, Solicitor
Hadlock, Presiding Judge, and DeHoog, Judge, and Mooney,
Summary: Defendant challenges the trial court's denial of
two pretrial motions that defendant made before he entered a
conditional guilty plea for three misdemeanor crimes. First,
defendant argues that the trial court erred by ruling that a
copy of a prior judgment of conviction for DUII was
admissible. Second, defendant argues that the trial court
erred in denying defendant's motion to suppress evidence
of his refusal to perform a breath test because the record is
not sufficient to prove that the police officer's request
for defendant's cooperation could reasonably be
understood as a request for physical cooperation rather than
consent to a search. The state concedes that the evidence of
the breath test was not admissible in this case.
Held: The Court of Appeals accepts the state's
concession that the evidence of defendant's refusal to
perform a breath test was not admissible. Accordingly, the
trial court erred in ruling it admissible, and the case must
be remanded. Given that disposition, and given procedural
idiosyncrasies in this case, the Court of Appeals declined to
reach the first assignment of error.
Or.App. 282] HADLOCK, P. J.
entered a conditional guilty plea to misdemeanor driving
under the influence of intoxicants (DUII), reckless driving,
and failure to appear. On appeal, defendant assigns error to
two of the trial court's rulings. First, defendant
challenges the court's ruling that a copy of a Clark
County, Washington, judgment of conviction for DUII was
admissible. The state makes several arguments in opposition.
Second, defendant challenges the denial of his motion to
suppress his refusal to perform a breath test. The state
concedes that point. For the reasons set out below, we accept
the state's concession that the trial court erred when it
denied defendant's motion to suppress his refusal to
perform a breath test, we decline to address the trial
court's ruling regarding admissibility of the Clark
County document, and we reverse and remand for further
defendant was charged with the crimes listed above, he filed
a discovery request for various records, including "[a]
record of all prior criminal convictions which the State
intends to introduce." Defendant also filed a written
motion to suppress evidence discovered during a stop,
including evidence of his refusal to take a breath test.
hearing on the morning of the date set for trial, defense
counsel alerted the court that he had "several
motions" for the court to address pretrial, including
the suppression motion. Defense counsel also said that he had
a motion "relating to a prior conviction,"
explaining that the prosecutor "has what appears to be a
certified copy of a judgment of conviction from Clark County,
Washington." Counsel asserted that the document was
"not an original certified," but was "a copy
of a certified judgment," which he argued was not
self-authenticating under OEC 902. Defense counsel suggested
that he thought the state might seek to introduce evidence of
the Clark County conviction in association with prosecuting
the reckless driving charge.
response, the prosecutor did not assert whether or how the
state would seek to use the Clark County judgment at trial.
Rather, the prosecutor said that he was "not entirely
sure how [his] office received that document" and
indicated that he could not represent whether it was "an
[300 Or.App. 283] original copy or a faxed over copy."
Further discussion about the authenticity and authentication
of the judgment document followed, and the court ultimately
ruled that the copy of the Clark County judgment would be
"admissible as a certified public record, under Rule
902." The court also denied defendant's
motion to suppress evidence found as a result of the stop,
including defendant's refusal to perform a breath test.
decided to enter a conditional guilty plea that would allow
him to challenge the trial court's pretrial rulings. In
court, defense counsel asserted that defendant would enter a
plea "without prejudice to [his] right to appeal"
the court's rulings on defendant's "motion to
suppress a stop, and motion to suppress *** any evidence of
field sobriety tests, and a motion to suppress any evidence
of a breath test refusal." Defendant ultimately entered
a conditional plea agreement in which he "reserve[d] the
right to review of all pretrial motions, including in
particular Defendant's motions to suppress and to exclude
evidence from trial in this matter." The agreement noted
that defendant's "motions to suppress and exclude
evidence of a traffic stop, field sobriety tests, breath
tests, and other evidence were all denied in part or in their
entirety." A separate plea [300 Or.App. 284] petition
stated that defendant retained the "right to appeal
denial of motions to exclude and suppress."
noted, defendant raises two assignments of error on appeal
from the resulting judgment. We address the second assignment
first. In a supplemental brief filed after the Supreme Court
issued its decision in State v. Banks, 364 Or. 332,
434 P.3d 361 (2019), defendant argues that the trial court
erred when it denied his motion to suppress the statement he
made after a police officer asked him to provide a breath
test: "No way, no way, no way." Defendant contends
that the state did not meet its burden to prove that the
refusal was admissible under Banks, which would have
required a showing that the request "could reasonably be
understood only as a request to provide physical cooperation
and not as a request for constitutionally-significant consent
to search." 364 Or at 343. The state concedes that,
"in light of Banks and based on the limited
record that was made in this case, the * * * evidence that
defendant declined to submit to a breath test is not
admissible over his objection." We agree. Because
defendant was convicted on a conditional guilty plea, the
correct remedy is to reverse and remand.
question remains whether to address defendant's other
assignment of error, in which he challenges what he
characterizes as the trial court's denial of his
"motion in limine to exclude the state's
evidence of his DUII conviction in Clark County,
Washington." Defendant acknowledges that the state
provided, in discovery, a document from Clark County
"purporting to show that defendant had been convicted of
DUII" and containing "an image purporting to be the
seal of Washington State." Defendant contends, however,
that "it is impossible to tell" whether the
document is a copy or an original and whether the ...