State v. Banks, 434 P.3d 361

Background

Defendant arrested for DUII; officer read implied-consent warnings and asked ("Will you take a breath test?"); defendant refused to provide a breath sample.
State sought to introduce defendant’s refusal at trial under ORS 813.310 as evidence of guilt; defendant argued the refusal was an exercise of constitutional rights and thus inadmissible.
Central statutory framework: ORS 813.100 (implied consent and the statutory right to refuse to "submit"), ORS 813.140 (express consent), and ORS 813.310 (admissibility of refusal evidence).
Majority held a verbal refusal to a warrantless search (constitutional right) cannot be used as evidence of guilt because doing so would penalize asserting the right; reversed the Court of Appeals and remanded.
Concurrence noted unresolved question whether breath tests are categorically permissible as search incident to arrest under Birchfield; concurrence would treat categorical search-incident rule differently if adopted.
Dissent (joined by one justice) argued the officer’s request was under the implied-consent statute (a request to "submit" for administrative compliance, not a request for constitutional consent), so statutory refusal may be admissible; would affirm conviction.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether defendant’s refusal to take a breath test may be admitted as evidence of guilt	State: refusal is not protected constitutional conduct when breath testing is authorized (implied consent/exigency); admissible under ORS 813.310	Defendant: refusal was an assertion of constitutional right (to refuse warrantless search); admission would penalize exercising that right	Court: verbal refusal to a warrantless search cannot be used as evidence of guilt; admission would impermissibly burden right to refuse consent
Whether implied-consent "deemed" consent eliminates constitutional protections at arrest	State: implied consent means driver has already consented, so no constitutional protection to assert	Defendant: statutory implied consent does not equate to actual constitutional consent; suspect retains right to refuse at arrest	Court: statutory "deemed" consent does not substitute for constitutional consent; defendant may exercise right to refuse
Whether the officer’s request was for constitutional "consent" (ORS 813.140) or statutory "submission" (ORS 813.100)	State: officer’s request can be a request to submit under ORS 813.100; refusal is a statutory, not constitutional, act admissible under ORS 813.310	Defendant: he understood question as seeking express constitutional consent; thus refusal was assertion of constitutional right	Court: factual ambiguity as to what form of request was made; but as to the core rule, refusal to a warrantless search cannot be used to show guilt
Whether exigent circumstances or other warrant exceptions justify treating refusal as non-privileged	State: breath testing usually justified by exigency or is lawful incident to arrest (per Birchfield); refusal thus may not be a protected act	Defendant: even if exigency exists, permitting refusal evidence would chill assertion of rights	Court: even where police later show exigency/probable cause, using a verbal refusal as evidence would impose an impermissible cost on asserting rights and is disallowed

Key Cases Cited

United States v. Prescott, 581 F.2d 1343 (9th Cir. 1978) (refusal to permit a warrantless entry is privileged conduct and may not be used as evidence of guilt)
Birchfield v. North Dakota, 136 S. Ct. 2160 (2016) (Supreme Court held warrantless breath tests incident to arrests for drunk driving can be permissible; refusal to submit to breath test may be criminally punishable in some contexts)
Bumper v. North Carolina, 391 U.S. 543 (1968) (state must prove consent was freely and voluntarily given; acquiescence to claim of authority insufficient)
State v. Machuca, 347 Or. 644 (Or. 2009) (dissipation of blood alcohol ordinarily creates exigency justifying warrantless blood draws)
State v. Swan, 363 Or. 121 (Or. 2018) (implied-consent statutes give a statutory right to refuse to take a breath test at point of arrest)