State v. Adame

If a defendant understands that a refusal to perform verbal field sobriety tests cannot be used against him in a court of law, the defendant is not "compelled" to provide testimonial evidence for the purposes of the self-incrimination clause.

Defendant appealed a conviction of DUII. An officer stopped Defendant and asked him to perform field sobriety tests. Defendant agreed to the horizontal gaze nystagmus test, but refused to perform the walk-and-turn test. Another officer asked Defendant if he would be willing to perform non-physical tests. After Defendant again refused, the officer read the field sobriety admonishment card, which stated, “If you refuse to do these [non-verbal] tests, the test refusal can be used against you in a court of law.” After Defendant again refused to perform the physical tests, he agreed to perform some verbal tests. Defendant failed these verbal tests and was charged with DUII. Defendant argued that the trial court erred by admitting verbal field sobriety tests into evidence because the tests were testimonial and compelled. Defendant argued this was in violation of the self-incrimination clause of the Oregon Constitution. The trial court determined that the main issue was whether there was reasonable confusion by Defendant about, if he refused to take the verbal tests, that refusal could be used against him and whether or not that played into his decision to take the test. The trial court implicitly found that Defendant understood the admonishment applied only to physical, non-verbal field sobriety tests and that the admonishment did not affect his decision to perform the verbal tests. The Court found sufficient evidence that Defendant understood he could refuse the verbal tests and that his refusal could not be used against him. Thus, the Court concluded that Defendant was not compelled to provide testimonial evidence. Affirmed.