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State v. Vandruff

Court of Appeals of Oregon

October 30, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
JAMES ALLEN VANDRUFF, aka James A. Vandruff, Defendant-Appellant.

          Argued and submitted September 19, 2019

          Multnomah County Circuit Court 050951965; Christopher A. Ramras, Judge.

          Kyle 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 Services.

          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 General.

          Before Hadlock, Presiding Judge, and DeHoog, Judge, and Mooney, Judge.

         Case 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.

          [300 Or.App. 282] HADLOCK, P. J.

         Defendant 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 proceedings.

         After 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.

         At a 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.

         In 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."[1] 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.

         Defendant 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."

         As 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.

         The 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 ...


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