State v. Eskie

Under ORS 813.135 and 813.136, evidence of a criminal defendant's refusal to comply with a field sobriety test is inadmissible if the arresting officer fails to notify the defendant that evidence of this non-compliance is admissible in trial.

Defendant was pulled over for erratic driving and agreed to a field test for driving under the influence of intoxicants (DUII). The officer (Pease) began to conduct a Horizontal Gaze Nystagmus (HGN) test, which required Defendant to follow Pease’s finger with his eyes. Defendant instead stared straight into Pease’s eyes. Pease asked Defendant to comply, but Defendant argued he was. Pease asked Defendant to get out of the car and attempted the test again. Defendant continued to stare into Pease’s eyes. Pease was not able to finish the test and arrested Defendant for DUII. Pease did not advise Defendant that non-cooperation with the test would be admissible in a prosecution.

Defendant was charged with DUII. At trial, Defendant moved to exclude evidence of his refusal to perform the HGN test, arguing that Pease failed to advise him of the consequences of non-cooperation, in violation of ORS 813.135 and 813.136. The trial court denied the motion; Defendant was eventually convicted. Defendant appealed, assigning error to the trial court’s admission of evidence that he refused to perform the HGN test. The state argued that, under ORS 136.432, the evidence was admissible because its exclusion was not required by the Constitution, or the Rules of Evidence.

The Oregon Court of Appeals held that, under ORS 813.135 and 813.136, there was a legislative determination that a driver’s failure to perform field tests is not admissible unless that person was advised of the consequences of refusal. DUII conviction reversed and remanded; otherwise affirmed.