438 P.3d 399
Or. Ct. App.2019Background
- Officer stopped defendant for crossing the fog line; observed slurred speech, bloodshot watery eyes, and odor of alcohol. Defendant admitted drinking one beer earlier.
- Defendant stumbled exiting the vehicle, swayed while standing, and agreed to perform field sobriety tests after officer's request.
- Defendant showed six of six indicators on horizontal gaze nystagmus, could not complete the walk-and-turn or one-leg-stand (citing knee complaints), and made errors on less-physical tests.
- Officer arrested defendant for DUII; at the jail defendant refused a breath test and said he couldn’t pass it.
- Defendant pled guilty to refusing the chemical test but went to trial on DUII; during closing the prosecutor argued defendant “chose to keep” evidence from the jury by not completing some field sobriety tests.
- Trial court overruled defense objection to that argument; jury convicted. On appeal defendant argued the prosecutor’s statements impermissibly shifted the burden of proof to him.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether prosecutor’s closing argument shifted burden of proof | Prosecutor: arguing jurors can infer guilt from defendant’s failure to complete tests; state properly urged inference of consciousness of guilt | Defendant: prosecutor misstated law by implying defendant had to produce evidence or explain not completing tests, shifting burden to defendant | Court: No abuse of discretion; argument viewed in context did not shift burden of proof |
Key Cases Cited
- State v. Rosasco, 103 Or. 343 (presumption of innocence and state’s burden to prove guilt)
- State v. Purrier, 265 Or. App. 618 (limits on prosecutor’s argument about burden and factfinding function)
- State v. Spieler, 269 Or. App. 623 (prosecutor may not invite consideration of nonadmitted evidence or comment on defendant’s silence except in limited circumstances)
- State v. Logston, 270 Or. App. 296 (abuse-of-discretion review of trial court’s control over closing arguments)
- State v. Worth, 231 Or. App. 69 (trial court discretion over prosecutorial conduct and mistrial requests)
- State v. Lundbom, 96 Or. App. 458 (trial court discretion not unbounded)
- State v. Adame, 261 Or. App. 11 (admissibility of refusal to perform nontestimonial field sobriety tests to show belief results would be incriminating)
- State v. Banks, 364 Or. 332 (constitutional limits on admitting invocation of rights vs. physical cooperation searches)
- State v. Nagel, 320 Or. 24 (field sobriety tests as searches under state constitution)