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This wikilog article is a draft, it was not published yet.

by: • March 8, 2019 • no comments

Summarized by Rankin Johnson, OCDLA

DUII — Refusal to submit to a breath test

Defendant's refusal to submit to a breath test was not admissible to prove intoxication. Remanded for new trial.

The Supreme Court explained that a refusal to submit to a search is not admissible as substantive evidence. The court also noted that the implied consent statutes make provision for the suspect to withdraw consent, and that, regardless of the statutes, constitutional consent may be withdrawn at any time.

The court left open the question of whether a refusal to cooperate with an involuntary exigent search would be admissible, because the state did not meet its burden of proof.

Kistler, concurring, suggested that an arrest for DUII might carry with it a lawful breath-test-incident-to-arrest in every case.

Balmer, dissenting, would have held that probable cause plus exigency is a basis for police to demand submission to a breath test, and that the court erred by focusing on consent.

State v. Banks 364 Or 332 (February 7, 2019) (Walters, Kistler concurring, Balmer, Nakamoto dissenting) (Multnomah County, Greenlick)

JOINDER — Alleging the basis for joinder

The allegations in the indictment established the basis for joinder even without a specific statement of the basis for joinder. Affirmed.

The court also held that defendant would not be 'substantially prejudiced' by the joint trial of multiple offenses, each of which would be an inadmissible other-bad-act as to the others. The court suggested the existence of a presumption to that effect.

The court held that any error to give a concurrence instruction was harmless, because the defense had not attacked any of the possible prosecution theories individually.

The court rejected a challenge to the second death-penalty question, held that the death-penalty moratorium did not invalidate the verdict, and held that a biased alternate juror had no effect on the outcome.

State v. Taylor 364 Or 364 (February 7, 2019) (Flynn) (Lane County, Zennaché)