Breath Test Refusal is Admissible in DUI Prosecution

The Oregon Court of Appeals recently decided two cases which held that a driver’s refusal to consent to a breath test is admissible in a subsequent DUI prosecution.

The Court rejected the defendant’s challenge to the denial of his Motion to Suppress evidence of his breath test refusal in a DUI prosecution. The Court reasoned that the admission of that evidence does not violate a defendant’s rights under Article I, section 12, and Article I, section 9. Under Article I, section 12, defendant argued that his refusal was compelled testimonial evidence. The court disagreed and explained that evidence of breath-test results is not testimonial, and therefore, defendant’s choice between taking the breath test and facing penalties for refusing to do so, did not put him in the position of having to choose between different methods of self-incrimination. Under Article I, section 9, defendant argued that introducing evidence of his refusal improperly burdened his right to refuse to consent to a search. The court rejected this argument, explaining that because the request was supported by probable cause and exigent circumstances, it was a request to conduct a reasonable search, and when the request is reasonable, a defendant does not have a constitutional right to refuse a breath test, only a statutory power to refuse.

The constitutional privilege against self-incrimination “appl[ies] to only testimonial evidence”; it does not apply to nontestimonial evidence related to the “defendant’s physical characteristics, such as identity, appearance, and physical condition.” State v. Tiner, 340 Or 551, 561, 135 P3d 305 (2006), cert den, 549 US 1169 (2007).

A breath test yields only “physical evidence of intoxication,” which is not testimonial, because it conveys nothing about the person’s “beliefs, knowledge, or state of mind.” State v. Nielsen, 147 Or App 294, 304, 936 P2d 374, rev den, 326 Or 68 (1997). However, “[t]he dispositive issue is not whether evidence of the refusal is communicative but whether the communication is the result of governmental compulsion of the sort which Article I, section 12, forbids. The right not to testify against oneself does not prevent the state from using a defendant’s out-of-court statements or other communicative activity as evidence. Rather, it prevents the state from requiring a defendant to provide such statements or activity. Thus, inculpatory statements to friends, relatives, accomplices and others are generally admissible if there is no improper governmental activity in procuring them. Statements to police or other authorities are also admissible if voluntarily made, either before custodial interrogation begins or, if made during custodial interrogation, after a knowing and voluntary waiver of Miranda rights.” State v. Green, 68 Or App 518, 523, 684 P2d 575 (1984), overruled on other grounds by State v. Panichello, 71 Or App 519, 692 P2d 720 (1984) (emphasis in original).

The Court did not find State v. Moller, 217 Or App 49, 174 P3d 1063 (2007) controlling or persuasive.

State v. Banks, 286 Or App 718 (2017) (Sercombe, P.J.).

State v. Smith, 286 Or App 743 (2017) (per curiam)

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