An argument to exclude from evidence a defendant’s refusal to take a breath test or to submit to field sobriety tests
by: Laura Coffin and Sarah Laidlaw • August 9, 2015 • no comments
- “If a person refuses to submit to a chemical test * * *, evidence of the person’s refusal is admissible in any civil or criminal action . . .”
- ORS 813.310.
- “If a person refuses or fails to submit to field sobriety tests . . ., evidence of the person’s refusal or failure to submit is admissible in any criminal or civil action . . .”
- ORS 813.136.
Those statutes provide the state with evidence in cases charging driving under the influence of intoxicants (DUII) when the state would otherwise have no substantive evidence of guilt. The result is something of a Catch-22 for defendants stopped based on a suspicion of committing DUII. The statutes force defendants to choose between (a) submitting to a search in which evidence of guilt could be collected and (b) incriminating themselves through a refusal. In other words, drivers suspected of DUII are forced to choose between two guaranteed constitutional rights: the right against unreasonable search and seizure and the right against self-incrimination. To exercise one, a defendant must forego the other. Since the enactment of the implied consent statutes, trial courts have admitted defendants’ refusals as substantive evidence of guilt in criminal trials. But defense attorneys should move to suppress that evidence based on defendants’ constitutional rights. This article will explain how to make a successful motion—or at least a motion that will sufficiently preserve the issue for the appellate courts.
The Fourth Amendment to the United States Constitution and Article I, section 9, of the Oregon Constitution provide people with the absolute right to refuse to consent to an unreasonable search. That right also extends to revoking previously provided consent. State v. Ford, 220 Or App 247, 251, 185 P3d 550 (2008).
Breath tests and field sobriety tests are searches under the Oregon Constitution and the United States Constitution. State v. Hays, 234 Or App 713, 719, 228 P3d 732 (2010) (holding that breath tests are searches); State v. Nagel, 320 Or 24, 31, 34-35, 880 P2d 451 (1994) (holding that field sobriety tests are searches). Officers typically do not obtain warrants to conduct those searches during DUII investigations. And because warrantless searches are per se unreasonable unless a warrant exception applies, people have a constitutional right to refuse to consent to those searches. Even if people are deemed to have impliedly consented to those searches under the statutory scheme, they have the constitutional right to revoke that consent. See Ford, 220 Or App at 251 (recognizing that a person may revoke her consent to a search).
The Fifth Amendment and Article I, section 12, provide people with the right to refuse to incriminate themselves. Refusing to submit to a search functions as an admission of guilt. The Oregon Supreme Court explained that concept in State v. Fish, 321 Or 48, 56, 893 P2d 1023 (1995), when it observed that a jury would likely interpret a defendant’s refusal to submit to field sobriety tests as evidence that the defendant had a guilty conscience. Jury members, who may never have been the subject of an investigation, might question: Why would an innocent person not trust that undergoing a police investigation would prove their innocence? Or why would an innocent person not want to undergo (intrusive and time-consuming) testing?
Because a refusal functions as an admission, communicating the defendant’s state of mind, it is testimonial. Fish 321 Or at 56. Therefore, forcing a person to refuse a breath test or field sobriety test when the person knows that refusal will be used as substantive evidence of her guilt in a criminal trial violates that person’s right against self-incrimination. And a person refusing the test does (presumably) know that the refusal will be used as substantive evidence of guilt, because the implied consent statutes say as much.
Of course, the statutes do not force a person to refuse the tests. But they do force a person to either refuse the tests and have that refusal admitted as evidence of guilt, or submit to the tests even though the person has a right to be free from the searches that are the breath test and field sobriety tests. When a person is forced to choose between (a) submitting to a breath test or field sobriety tests, and (b) the state using her refusal as substantive evidence of her guilt in a criminal trial, that person is being forced to choose between her constitutional rights (a) to privacy and (b) against self-incrimination. That procedure diminishes the person’s right to privacy by depriving her of her right against self-incrimination when she exercises her privacy right. Evidence obtained through such a procedure is inadmissible. State v. Mendoza, 264 Or App 225, 227, 229, 331 P3d 1059 (2014) (the defendant’s assertion of his right to privacy was inadmissible as substantive evidence of his guilt, because that violated his right against self-incrimination). The pitting of one constitutional choice against another is itself a violation of the constitution. State v. Gressel, 276 Or 333, 338, 554 P2d 1014 (1976) (“A mere assertion of one’s constitutional rights cannot be the basis for depriving an individual of those rights”). That is because the choice reduces the power of the constitution. The state cannot, through legislation, pit two constitutional rights against each other.
Defendants have attempted a similar argument before, but the argument hinged on one constitutional right—the right against self-incrimination. Defendants argued that both, the refusal to take the tests and the tests themselves, were testimonial. Therefore (the argument went), a driver was forced either to incriminate herself by taking the test, or to incriminate herself another way by refusing the test. The Court of Appeals settled that issue by holding that the breath test and most field sobriety tests (including the three most commonly used tests) are not testimonial, because they involve purely physical observations. Because the tests are not testimonial, they do not involve the right against self-incrimination. Thus, the court held that, because a driver is not forced to choose between two methods of self-incrimination, a refusal’s admission does not violate the driver’s constitutional rights under that analysis. State v. Earley, 78 Or App 646, 717 P2d 1228 (1986); State v. Gardner, 52 Or App 663, 629 P2d 412 (1981).
The argument set out in this article is a new argument that has not yet been addressed by the Oregon appellate courts. In this argument, a defendant relies on two constitutional rights—the right against self-incrimination and the right to privacy. In short, the argument is that when a person cannot exercise her privacy right except on pain of giving up her right against self-incrimination, she has already been deprived of her privacy right. State v. Moller, 217 Or App 49, 52-53, 174 P3d 1063 (2007).
The Oregon Supreme Court hinted that it understood this argument in State v. Moore, 354 Or 493, 318 P3d 1133 (2013). However, Moore addressed a different issue—whether the defendant’s consent to submit to a chemical test was coerced or involuntary when the consent was given in response to an officer informing the defendant of the implied consent laws. The argument went something like this: Because the officer told the defendant that he must either submit to the search or have his refusal used against him in a criminal trial, the defendant’s consent was coerced. The defendant reasoned that the officer’s “threat” to use the refusal as substantive evidence of guilt was an unlawful threat, because using a person’s exercise of a constitutional right as evidence of the person’s guilt in a criminal trial is unlawful. But the Supreme Court determined that the defendant’s consent was not coerced or involuntary, because the officer told the defendant that his refusal may be offered in a proceeding, rather than will be used in a criminal proceeding. Id. at 505-506. Although it did not address it, the court suggested that it understood an argument similar to the one made in this article when it assumed “arguendo” that using a refusal as evidence of guilt violates a defendant’s Article I, section 9, right “in some circumstances.” Id. at 504.
It is important to note that when moving to exclude evidence of a defendant’s refusal, a defendant should do so through a motion to suppress. That is because the analysis of whether the defendant had a right to exercise her Fourth Amendment and section 9 rights is fact-intensive. The Court of Appeals has held that a defendant does not have a right to refuse to consent to a breath test in the first place when the exigency warrant exception applies. State v. Gefre, 137 Or App 77, 903 P2d 386 (1995). But exigency does not exist per se in DUII cases. Missouri v. McNeely, 133 S Ct 1552, 185 L Ed 2d 696 (2012); State v. Martinez-Alvarez, 245 Or App 369, 263 P3d 1091 (2011). Therefore, a suppression hearing is necessary to determine whether the exception applied. If the search was reasonable based on a warrant exception, then according to current Court of Appeals case law led by Gefre, a defendant’s right to refuse or revoke consent is eliminated. In such a case, the argument laid out here is invalid.
However, it may be worth making the argument even in cases when exigency justifies the search. Even though the Court of Appeals has decided that a defendant has no right to refuse a search in a DUII case with exigent circumstances, there exists a valid argument that Gefre and its progeny were wrongly decided and should be overturned. Those cases did not consider that a person has a right to refuse a warrantless search even if it later turns out that the search was justified by some exception to the warrant requirement. That is not a new concept in non-DUII case law. The Ninth Circuit Court of Appeals, in US v. Prescott, 581 F2d 1343, 1351 (9th Cir 1978), explains the concept at 1350-51: “When * * * [an] officer demands entry but presents no warrant, there is a presumption that the officer has no right to enter[.] * * * An occupant can act on that presumption and refuse admission. He need not try to ascertain whether, in a particular case, the absence of a warrant is excused.” After all, warrantless searches are per se unreasonable.
Consider, for example, a driver carrying contraband, and imagine that the circumstances are such that—because the car is considered “mobile” at the relevant time—the automobile exception to the warrant requirement would justify a search. A police officer asks the driver for consent to search, the driver refuses, but the officer searches anyway. At a suppression hearing, the search is upheld as lawful under the automobile exception. In such a case, the state may not admit evidence that the defendant refused to consent to the search and tell the jury that that refusal is evidence of the defendant’s guilt. See Moller, 217 Or App at 53 (holding that the prosecutor’s rebuttal use of the defendant’s refusal to consent to a warrantless search was improper). The same is true in the DUII setting even though the vehicle code requires drivers to submit to breath tests and field sobriety tests. A person may refuse a warrantless search even if to do so would violate a statute. See e.g., State v. Davis, 133 Or App 467, 474, 891 P2d 1373 (1995) (holding that a probationer maintains an Article I, section 9, privacy right in his home even when his refusal to consent to a warrantless search violates the conditions of his probation).
At this point, you are probably thinking to yourself, “But what about the statutes quoted at the beginning of this article that explicitly permit a trial court to admit defendants’ refusals as evidence in criminal trials?” This is where the argument gets uncomfortable. Defendants will also have to argue that ORS 813.310 and ORS 813.136 are unconstitutional as applied to criminal trials. This is a valid argument. Statutes cannot divest people of their constitutional rights. State v. Bridewell, 306 Or 231, 239, 759 P2d 1054 (1988). And, as this article shows, ORS 813.310 and ORS 813.136 work to eliminate defendants’ constitutional rights.
It may provide some comfort to the courts (and those making this argument) that the purpose of the statutes can be maintained even if the portion applying to criminal trials is eliminated. The statutes were originally drafted to encourage or put pressure on drivers to submit to DUII investigations. Those teeth may be dulled some by eliminating the threat that a refusal can be used as substantive evidence of guilt in a criminal trial. But the teeth are not removed. The refusal may still be used in administrative or civil proceedings, because such uses do not involve a person’s right against self-incrimination. For example, an administrative court could revoke a person’s driver license based on the person’s refusal. Or a court could admit evidence of a refusal in a civil trial to prove a defendant’s negligence in a personal injury case. But the refusal cannot be used as substantive evidence of a defendant’s guilt in a criminal trial.
