State v. LawrenceState v. Lawrence
- Reporters:
- , ,
- Before:
- Rossman
Defendant appeals his conviction for driving under the influence of intoxicants (DUII).
Defendant was stopped for committing various traffic violations. When Officer Shawver approached defendant, he observed indicia of intoxication. He asked defendant to perform field sоbriety tests and advised him that test failure or refusal to perform the tests could be used against him in court.
The first test that Shawver had defendant perform was a horizontal gaze nystаgmus test. Shawver then had defendant perform the Romberg standing test, which requires the driver to stand with feet together, arms at his sides, eyes closed and head tilted back. While defendant was in the Romberg position, Shawver asked him to recite the alphabet. Defendant did so “quickly and inaccurately” while swaying back and forth. Then, Shawver asked him to count backwards from 100 to 77. Defendant, still swaying, made several mistakes on the counting test. Shawver then had defendant perform a finger to nose test. Shawver felt that defendant had failed the field sobriety tests, and he told defendant that he was stopping them.
Shawver then asked defendant to rate his level of intoxication on a scale from 1 (sober) to 10 (intоxicated). Defendant answered, “2.” Next, Shawver asked defendant if he could feel the effects of the alcohol that he had consumed. Defendant responded, “Some.” Finally, Shawver asked defendant if his drinking had affected his driving and performance on the field sobriety tests. Defendant answered, “I’m only going to Newport.” At that point, Shawver arrested him and advised him of his Miranda rights.
Defendant moved to suppress the results of the field sobriety tests and the statements that he made after the tests were concluded. The court denied the motion.
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In defendant’s first assignment of error he contends that the field sobriety test statutes,
As to Article I, section 9, defendant asserts that an officer’s request that a driver perform field sobriety tests and the officer’s observation of those tests constitute a search. He then points to the fact that an officer needs only “reasonable suspicion” 2 of DUII before conducting the tests and concludes that the statutes impermissibly authorize a searсh based on less than probable cause.
Under Article I, section 9, a search occurs when governmental intrusion significantly impairs privacy rights.
State v. Wacker,
111 Or App 483, 486, 826 P2d 1019 (1992). An officer does not make a forbidden intrusion into constitutionally protected privacy by asking a driver to perform field sobriety tests or by watching the driver perform them.
State v. Niles,
74 Or App 383, 386, 703 P2d 1030 (1985). Although
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we decided Mies before the legislature enacted
With respect to defendant’s contention that
In his second assignment of error, defendant contends that the court erred by denying his motion to suppress responses to questions that the arresting officer asked after he stopped the field sobriety tests. He argues that some type of “clear break” should be provided by police to distinguish field sobriety tests from subsequent investigatory questions, so that motorists do not believe that they are required to respond to the latter. We agree.
In State v. Scott, supra, the defendant had been arrested for driving while suspended, advised of his Miranda rights and transported to jail. At the jail, he was asked to perform field sobriety tests and was informed that a refusal would be used against him in court. After he had performed several tests, he was asked to rate his level of intoxication. We held that that question “sought testimony on the central issue in the case’ ’ and could not be properly characterized as a field sobriety test. 111 Or App at 313. We concluded that, *104 although at one point the defendant had been advised of his Miranda rights, he had later been
“told that refusal to submit to field sobriety tests would be used against him. Defendant could have believed that refusing to rate his level of intoxication would constitute a refusal to submit to appropriate tests. That was not the case. ” 111 Or App at 313.
Here, defendant was faced with an identical question regarding his level of intoxication. His answer should have been suppressed. State v. Scott, supra.
The questions regarding whether defendant could “feel the effects” of what he had been drinking and whether his drinking had “had an effect” on his driving and test performance are also questions that were likely to elicit self-incriminating testimonial evidence. They were not field sobriety tests.
See
The court erred in denying defendant’s motion to suppress his responses to the post-field sobriety tests questions. Although the trial court properly admitted substantial *105 evidence of defendant’s guilt, we cannot say that there was little, if any, likelihood that the evidential errors affected the verdict. Or Const, Art VII (amended), § 3; State v. Walton, 311 Or 223, 230, 809 P2d 81 (1991). Neither can we say that the state has proved beyond a reasonable doubt that the errors did not contribute to the verdict. US Const, Amend V; Chapman v. California, 386 US 18, 24, 87 S Ct 824, 17 L Ed 2d 705 (1967). Defendant is entitled to a new trial. 6
Reversed and remanded for a new trial.
Notes
‘ ‘Any person who opеrates a vehicle upon premises open to the public or the highways of the state shall be deemed to have given consent to submit to field sobriety tests upon thе request of a police officer for the purpose of determining if the person is under the influence of intoxicants if the police officer reasonably susрects that the person has committed the offense of driving while under the influence of intoxicants in violation ofORS 813.010 or a municipal ordinance. Before the tests are administered, the person requested to take the tests shall be informed of the consequences of refusing to take or failing to submit to the tests underORS 813.136. ”
“If a person refuses оr fails to submit to field sobriety tests as required byORS 813.135 , evidence of the person’s refusal or failure to submit is admissible in any criminal or civil action or proceeding arising out of allegations that the person was driving while under the influence of intoxicants.”
Because the rights guaranteed by the Fifth Amendment are essentially the same as those protеcted by Article I, section 12, State v. Green, 68 Or App 518, 523 n 3, 684 P2d 575 (1984), the statutes are also constitutional under the federal constitution.
“ ‘Field sobriety test’ means a physical or mental test, approved by thе Department of State Police by rule after consultation with the Board on Public Safely Standards and Training, that enables a police officer or trier of fact to screen for or detect probable impairment from intoxicating liquor, a controlled substance or a combination of intoxicating liquor and a controlled substаnce.”
In State v. Smith, supra, the Supreme Court stated that Miranda-like warnings may be required “in circumstances that, although they do not rise to the level of full custody, create a ‘setting which judges would and officers should recognize to be “compelling,” ’ ” quoting State v. Magee, 304 Or 261, 265, 744 P2d 250 (1987).
Defendant also challenges the admission of his response to a question by the officer about his educational background. Given our reversal of the conviction, we need not reach that issue.