State v. Smith

Plain-error must be: (1) an error of law, (2) obvious; and, (3) “apparent on the record without requiring the court to choose among competing inferences.” State v. Vanornum, 354 Or 614 (2013).

Defendant appeals a judgment of conviction for driving under the influence of intoxicants (DUII) and reckless driving. On appeal, Defendant argued that under State v. Banks, 364 Or 332 (2019), the trial court erred by admitting evidence of breath test refusal and by instructing the jury it could consider the refusal to determine guilt. In response, the State argued that, unlike the defendant in Banks, Defendant did not challenge the admission of refusal evidence, but merely took exception to the related jury instruction. Defendant conceded and requested plain-error review. Plain-error review involves a two-step inquiry: (1) whether the error is plain; and (2) whether to exercise judicial discretion to consider an error. Ailes v. Portland Meadows, Inc., 312 Or 376 (1991). Plain-error must be: (1) an error of law, (2) obvious; and, (3) “apparent on the record without requiring the court to choose among competing inferences.” State v. Vanornum, 354 Or 614 (2013).  The Court concluded that without objection to the admission of evidence that affords the state to develop the necessary record, the error is neither obvious nor apparent, and required the Court to choose between competing inferences. Further, Banks does not establish that evidence of a refusal to take a breath test is per se inadmissible.  Therefore, the trial court did not err with its instruction to the jury. AFFIRMED.