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Oregon Appellate Ct - July 12, 2017

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by: Sara Werboff • July 14, 2017 • no comments

DUII – Defendant’s Refusal to Consent to Breath Test Admissible in DUII Prosecution

The court rejects defendant’s challenge to the denial of his motion to suppress evidence of his breath test refusal in a DUII prosecution, holding that the admission of that evidence does not violate 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 disagrees, explaining that evidence of breath-test results are 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 rejects 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.

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

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

Evidence – Trial Court Admitted Text Messages as Adoptive Admissions

In this drug prosecution, the state sought to admit several text messages taken from defendant’s phone. Defendant objected that the text messages that were not authored by defendant were hearsay. The trial court admitted the messages. The dispute in this case was whether the trial court admitted the messages as adoptive admissions, and the court explains that defendant’s argument takes the trial court’s ruling out of context, and that the trial court did admit the messages as adoptive admissions.

State v. Rasberry, 286 Or App 685 (2017) (Hadlock, C.J.)

OEC 403 – Granting Reconsideration to Remand to Trial Court to Conduct Balancing

The court grants the state’s petition for reconsideration. After the court agreed with defendant that the trial court erred in failing to conduct OEC 403 balancing, it reversed and remanded for a new trial. The state moved for reconsideration in light of State v. Baughman, 361 Or 386 (2017), in which the Oregon Supreme Court held that the remedy for a trial court’s failure to balance is a limited remand for the trial court to conduct balancing and determine whether a new trial is required. The court agrees that the remedy is a remand, and rejects defendant’s request to consider the other assignments of error in the case.

State v. Brown, 286 Or App 714 (2017) (Linder, S.J.)