323 P.3d 282
Or. Ct. App.2014Background
- At ~1:30 a.m. Officer Kirk stopped defendant after a random plate check showed expired registration; Kirk smelled alcohol and observed watery eyes.
- Defendant refused some physical field sobriety tests (walk-and-turn) citing a bad back; Officer Majetich arrived and read an admonishment card describing three nonverbal, nontestimonial tests (HGN, walk-and-turn, one-leg stand) and stating refusal to those tests could be used against defendant.
- After demonstrations and repeated requests, defendant again refused physical tests but agreed to "nonphysical" verbal tests (recite alphabet; count 65–98).
- Defendant performed the alphabet correctly but failed the counting test; Majetich then arrested and later Mirandized him.
- Defendant moved to suppress evidence from the verbal tests, arguing the verbal tests were testimonial and compelled under Article I, section 12 (Oregon self-incrimination clause) because the admonishment suggested refusal would be admissible; trial court denied suppression and defendant entered a conditional guilty plea reserving appeal.
- Court of Appeals affirmed, finding sufficient evidence that defendant understood the admonishment referred only to the physical tests identified and therefore was not compelled to provide testimonial evidence by performing the verbal tests.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether verbal field sobriety tests (alphabet, counting) are testimonial and thus protected by Article I, §12 | State: verbal tests may be testimonial depending on content; but here officer demonstrated nonverbal tests and defendant voluntarily performed verbal tests | Defendant: verbal tests are testimonial (require memory/perception) and, after admonishment that refusal to tests could be used, he was compelled to choose between testifying or having refusal admitted (Fish) | Held: Verbal tests can be testimonial, but on these facts defendant was not compelled — trial court reasonably could find admonishment applied only to physical tests so his performance was voluntary; suppression denied |
| Whether reading admonishment before requesting verbal tests created a compelled-choice under Fish | State: admonishment identified specific nonverbal tests and consequences; no evidence admonishment applied to verbal tests | Defendant: immediate request for verbal tests after admonishment created reasonable confusion; Fish requires suppression when choice compels self-incrimination | Held: Whether defendant was confused is a factual question; record supports inference defendant understood admonishment only covered the listed physical tests, so no compulsion under Fish |
| Whether ORS implied-consent warnings require a specific recitation and thus affect admissibility of verbal-test responses | State: ORS 813.135–.136 require informing of consequences for refusal of field tests but do not require verbatim recitation; statutes aim to induce compliance and limit exclusion to refusals when no warning given | Defendant: argued warnings created compulsion for later verbal tests | Held: Statutes do not mandate exclusion when person takes tests after being informed; here admonishment satisfied purpose and did not render verbal-test performance compelled |
| Whether random plate check that initiated stop violated privileges and immunities clause (Article I, §20) and requires suppression | State: defendant failed to preserve claim; court need not reach merits | Defendant: asserts plain error review | Held: Court declined plain-error review because the legal point was reasonably in dispute; merits not reached |
Key Cases Cited
- State v. Fish, 321 Or. 48, 893 P.2d 1023 (Or. 1995) (holding that both refusing and performing certain field sobriety tests can be testimonial, and presenting a compelled choice violates Article I, §12)
- State v. Trenary, 316 Or. 172, 850 P.2d 356 (Or. 1993) (interpreting ORS 813.135–.136 to create a limited exclusionary rule protecting refusals when consequences were not communicated)
- State v. Cabanilla, 351 Or. 622, 273 P.3d 125 (Or. 2012) (ORS 813.135 does not require recitation of statute verbatim)
- State v. Nielsen, 147 Or. App. 294, 936 P.2d 374 (Or. Ct. App. 1997) (physical aspects of certain field tests are nontestimonial; tests producing physical evidence may be compelled)
- State v. Prickett, 324 Or. 489, 930 P.2d 221 (Or. 1997) (refusing Lawrence’s rule that completing field tests without more creates a compelling setting as a matter of law)