*1 Orеgon Supreme April remand Submitted on from the affirmed June July reconsideration denied petition 21, 1984 601) (297 August for review denied OREGON, STATE OF Appellant, GREEN, JIM SHANNON Respondent. (81-13444; A26987) CA *2 Attorney Nessly, Salem, General, Jr., Assistant F. William appellant. argued were With him on the brief for the cause Gary, Frohnmayer, Attorney General, F. and William Dave General, Salem. Solicitor respondent. Sandy, argued Schneider, for cause Merrill Sаndy. Birmingham, was Patrick M.
With him on the brief Judge, Young, Presiding Gillette, Warden Before Judges.
GILLETTE, P. J. concurring. specially J., Warden, GILLETTE, P. J. appeals suppressing
The trial court order evidence of defendant’s to take field tests driving in his for use trial while under the influence of intoxicants. We dismissed the for failure to serve the required period. trial clerk court within the Green, State v. (1984). App P2d Green, reversed and remаnded the case to us. State v. (1984). deny P2d nowWe defendant’s motion to timely dismiss failure to file fashion and suppression. order affirm the orally granted court trial defendant’s motion to
suppress suppressing sign on November but did not the order 6,1982. date,
until December
On that
the District
employes
order,
Court clerk’s office received the
and one of its
attorneys
notify
delays
called both
it.
them of
Because
workings
caused
the inner
office,
the clerk’s
the order
actually stamped
was
“filed” until December
1982.
January
The state filed its notice of
13,1983,
timely
appeal period began running
if the
on December
urges, began running
14,1982,
if,
*3
but was late
as defendant
it
holding
6,1982.
on December
Defendant relies on cases
that a
actually
document is “filed” with
clerk
the
the
when
clerk
filing,
Develop.,
receives
for
Vandermeer
N. W.
Pacific
(1976); Wagner’s
Estate,
ORS which criminal any allows the notice filed verdict, of to be at time after days judgment but no more than 30 “after the or order given appealed (Emphasis supplied.) from was or made.” It distinguish filing entry thus dоes not between pro- other that have no order, instead uses terms but an 138.071(2)(a) time for extends the ORS referents. cedural “entry” disposing order days after the an to 30 However, clear not have the “entry” does new trial motion. civil, in the criminal context does meaning in the statutorily required journal is no because are to be entered. orders or made” to “given to construe is not unreasonable
It do, but we would have us “filed,” as defendant identical appropriate construction. think that do not precise term if that had been could have used the legislature clear, for objective point important It is to have its intention. reference, many appeals, because parties’ particularly by defendants, by attorneys by the state and are handled both with the case at the trial level. had no involvement who filed, Although judgment purposes an order or and most readily effective, it, the clerk receives it is not then when availability public parties. or to the That available to order stamped when it is “filed.” We hold that an occurs act, and the “given or made” on the date of that judgment timely. turn to the state’s in this case wаs therefore We merits. car
An officer found defendant at the scene of a one he had been the accident in circumstances that indicated that of the vehicle and that he was under the influence driver standard field perform alcohol. The officer asked defendant tests, again he after the sobriety refused. He refused him for the tests was to determine officеr told reason his The officer then arrested him. condition. defen- suppressed trial court various statements sup- and also during investigation the officer’s
dant made to take the field that he had refused pressed the fact derivative of tests, fact of the refusal was holding that there- and that its use would refusing statement sup- rights. The state concedes fore violate his Miranda *4 Roberti, 293 v. dеfendant’s under State statments pression appeals the 236, 1341,(1982), pending, cert but 646 P2d to take the field of the fact that defendant refused suppression is not the mere fact of refusal sobriety argues tests. It violate thus not and that evidence of would testimonial give to required not to be defendant’s constitutional 522
testimony against himself. Because performance of the tests would nоt have testimonial, been asserts, the fact that he refused to take them also is We find problem considerably testimonial. to be more complex than that.
Courts are divided on whether evidence of a refusal to
provide non-testimonial
evidence is itself testimonial. Some
have held
is
showing
refusal
conduct
consciousness of
and,
guilt
by
(such
analogy with other
flight)
actions
аs
traditionally held to be evidence of
guilt,
consciousness of
See,
non-testimonal
nonprivileged.1
therefore
e.g., People
Ellis,
529,
v.
65 Cal 2d
Rptr 385,
(1966)
Cal
523 testify defendant to reveal to thoughts require those is him to against I, 12, himself and thus Article section to violate Oregon question We turn Constitution.3 to whether the “compelled.” communication should be deemed dispositive issue is not whether evidence of the refusal is communicative whether the communication is the result of governmental compulsion of the sort I, Article testify against section forbids. The not to prevent oneself does not the state from using a defendant’s out-of-court statements activity or other communicative as Rather, prevents evidence. requiring the state from a defen to provide dant activity. Thus, inculpatory such statements or friends, statements relatives, accomplices аnd others are generally admissible if there is no improper governmental activity in them. procuring police Statements or other authorities are also if voluntarily made, admissible either before custodial interrogation begins or, if made during custodial interrogation, after a knowing and voluntary waiver of Miranda rights. principles
These apply equally to activity non-verbal with сommunicative Thus, effects. of flight admissible to show a guilt. defendant’s consciousness of State McCormick, 28 App 821, rev’d on other grounds (1977).4 If jury finds that a flight shows consciousness of it has guilt, has, found that the effect, said, defendant in “I know that I am guilty, so I don’t want to caught be tried.” The conduct is communicative, and it is the communicative effect that places permitted so, however, evidence.5 It is to do Oregon However, We decide this case under the Constitution. the Fifth Amend essentially I, ment to the United States Constitution is similar to Article section comparable provisions are in other state Thus constitutions. cases from the United courts, may controlling, helpful. States from other while not be McCormick, supra, recognize Both decisions in State v. that consciousness of guilt possiblе that, flight one of several inferences that drawn therefore, give special However, subject. the court should not instructions on the both agree that the evidence is admissible. respect, flight “implied In this is an assertion” similar to those whose status as hearsay long subject controversy. trend, has been The recent reflected OEC (1)(b), hearsay only is to treat nonverbal conduct аs if it is intended as an assertion. dangers hearsay designed The reason for this limitation is based rule is prevent, implied aon determination that assertions are not assertions or are not McCormick, (2d 1972). I, communicative. § Evidence ed Article section of the evidence but also because because of the nature
just
compel
compelled;
is not
if the state seeks
сommunication
not flee and thus that he not
it is that defendant
anything,
(Fifth
Neville, supra
South Dakota v.
communicate. Cf.
physical or moral
only protects against the use of
Amendment
upon
person
whose communication
compulsion
.6
sought)
tests further
illustrate
concerning
Evidence
breath
requires
provide
the state
defendant
principle.
When
noncommunicative,
self-
evidence which
itself
violation if
defendant does
incrimination
*6
are
evidence,
doing
compelled.
his
in
so
though
even
actions
757,
1826,
L
761, 86 Ct
16
California,
Schmerber v.
384 US
S
(1966);
Cram,
577,
P2d 283
2d
v.
176 Or
Ed
State
(1945) (blood
most other
sample).
Oregon,
This is what
like
states,
to take
requires
when it
drivers arrested for DUII
does
however,
breathalyzer
legislature,
a
test. ORS
The
487.805.
(not a
power
a
obligation
the
to take the test
has added to
price
at a
power
of that
comes
to refuse it. The exercise
right)
487.805(4):
in ORS
legislature
part
the
has set forth
which
have held
in court. We
evidence of the refusal
is admissible
Fifth Amendment
this
does not violate the
provision
that
is
self-incrimination,
the refusal
not because
against
right
*“* *
had no
noncommunicative,
the defendant
because
test and
to the breath
privilege not to submit
сonstitutional
expressly
test is
statutory right not to take the
because [the]
sort,
any
compelled
purpose
protecting against
whether or
communications
the
hearsay
reliable,
only
they
purpose
insure the
rule is
to
while the
of the
not
are
implied
scope
reliability
Including
the
of the
assertions within
of evidence.
implied
treating
necessary
purpose,
agаinst
reliable
its
while
is
to
self-incrimination
hearsay
necessary
hearsay
purposes of
rule.
is
to the
assertions as
not
Sudduth,
2,
Ellis, supra,
People
supra,
each of
People
n
v.
Cases such as
v.
560-61,
Neville,
holding
supra,
that the
at
is
in South Dakota v.
459 US
cited
testimonial,
requested
perform
issues of whether
is
confuse the
refusal to
tests
not
Determining
is
that
is
with
it
communicative.
fact of the refusal
inadmissible
whether
step
determining
only
it is constitu
is
they
one
whether
an action is communicative
tionally
long
compelled,
protected.
both communicative actions
are not
So
by
directly
they
compelled,
protected.
either
not
If
are
direct statements are
2,
situation,
supra,
protected.
often
they
n
of this sort
As noted
cases
of the
are
nature
inсorrectly
police
cooperate
person
tests the
with whatever
that a
must
assume
justifying
constitutionally protected right
refusal.
request,
unless there
some
authority compelling
legal
they
any
assumption,
seek nor find
neither
Because of this
may require
governmental
a
elementary
cooperation.
official
it
Yet
authority
granted
to
the official has beеn
such actions as
citizen to take
(1983).
Lowry,
require.
v.
344 n
667 P2d
See State
* *
qualified
Gardner,
v.
App
statute
State
(1981).
rev
All legal compulsion is on the driver take the breathalyzer penalties test. designed for refusal are not elicit testimony otherwise unavailable but to coerce the driver agreeing into provide noncommunicative evidence of the test. The has given Choice driver Hobson’s equally between two impermissible requirements. Rather, seeks the test —evidence which it is entitled. Gardner, supra. State
inUse court of the fact of simply the refusal condition legislature placed grant has on its power to refuse provide respect еvidence. In this evidence of a breathalzyer refusal to take a test is similar to evidence of flight: communicative, both are but both are actions which the very state at the least tries —and is entitled to try discourage. compulsion on the defendant —to to provide the communicative evidence but to non- communicative evidence. The sanction of the use of the communicative refusal at trial proper. The United States Supreme Court adopted approach. our
“* * * Given, then, taking that the offer of a blood-alcohol clearly test is legitimate, legitimate the action becomes less when option test, the state offers refusing a second with *7 penalties the attendant making for that choice. Nor is this a subtly casе where the State respondent coerced into choosing option compel, had no than rather offering respondent contrary, a true choice. To the the State wants test,
to choose to take the
for the inference of
arising
positive
intoxication
a
from
blood-alcohol test is far
stronger
arising
than that
from a refusal to take the test.”
Nevillе, supra,
South Dakota v.
(Emphasis
Affirmed.
WARDEN, J., specially concurring. agrеe with the that the decision majority
Because affirmed, the reason that the trial court should be but for untimely, I in the result. state’s was concur 138.060, which appeals pursuant to ORS The state provides: or the
“The an the circuit court Appeals from: district court to the Court of * * [**]
“(3) prior suppressing An to trial order made [*] * * J5 provides:
ORS 18.071 ** * «* * * filed [q>]henotice of shall be served and appealed days judgment or order not later than 30 from was after givеn (Emphasis supplied:) or made.” by legerdemain majority, process logical an lawyer, “giving making” could fool concludes it “filed.” The are not stamping processes order means of his part as a judge same. The order or made given was as act of duties; it “filed” the ministerial judicial stamped a court clerk. “given equating gives its reason majority ” that, stamping until the “stamped with ‘filed’
оr made” or to public to the done, yet readily “is not available the order *8 make, 'it if it is indeed difference does parties.” the What fact, public, that the order is available when what is not appeal by one beginning be determined is the of the time parties? makeweight, I submit that the reason would be if weight. it had submit, too,
I that difference for the it makes no purpose starting running that the оrder time for stamped not readily parties be available to the it is before significant parties “filed.” What is is that know what the court ordered, of defen- suppression this case of evidence Here, dant’s parties refusal to take field tests. had 5,1982, knowledge the court’s decision on November when orally the court ruling announced its on the motion. On 6, 1982, December they again of the court’s were advised ruling when the order was to the clerk’s signed delivered employe telephoned office an of that attorneys office both view, advise them my “given of those facts. In the order was that, and made” on December and the state on notice if so, it intended to days. do it had to the order within 30 It should be given delays not additional time because of in the clerk’s office. Delker,
In State v. App (1976), the defendant contended that state’s appeal should dismissed, be because it timely. rejected was not We his argument appeal period that the run began when the trial judge orally Charco, his Relying announced order. Inc. v. Cohn, (1966), that, Or held we because filed, order was not effective until was the appeal period did not begin running App until time. 26 Or at 503. Implicit in that holding the time for begins run Charco, when an order suppressing evidence is filed. In Supreme Court previous reaffirmed its holdings that orders signed open court filing, become effective on the date of stating: “Any effective, other rule upon would make an order order, judge
the will upon who made the the whim of clerk as to when it should be entered.” 242 Or 570. at rule abhorred is thе one the adopts. majority
“Filing”
delivery
is the
of the order to
the clerk
Charco,
Cohn,
court with the intent
filed.
v.
Inc.
Fisch-Or,
P2d
supra; Highway Commission
(1965).
“given
that an order is
1011,