State v. Ramirez-Carmona

“In reviewing the voluntariness of a defendant’s consent to a search, we consider whether, under the totality of the circumstances, the consent was given by an act of free will or was the result of coercion, express or implied.” State v. Moore, 354 Or 493, 505 (2013).

Defendant appealed a conviction for DUII. Defendant assigned error to the trial court’s denial of his motion to suppress his breath test results and his refusal to take field sobriety tests (FST). As a result of the admitted evidence, Defendant’s probation in his two prior cases was extended and terminated. On appeal, Defendant argued that both the evidence of the breath test and the refusal to take the FST was inadmissible because Defendant’s consent to the test was involuntary when the officer stated that the refusal to take the tests would be used against him in court. In response, the State argued that the standard combined consent warning that the officer read was standard procedure accepted by the court in previous cases. The State conceded on the FST issue, that the trial court should have suppressed evidence but that the error was harmless. “In reviewing the voluntariness of a defendant’s consent to a search, we consider whether, under the totality of the circumstances, the consent was given by an act of free will or was the result of coercion, express or implied.” State v. Moore, 354 Or 493, 505 (2013). The Court held, as to the breath test evidence, Moore rejected a similar involuntariness argument. Therefore, the lower court did not err as to that evidence. However, the Court accepted the State’s concession as to the FST evidence but that the error was not harmless because the State’s case was “less than overwhelming” and that the refusal to take the FST likely used cumulatively with the officer’s testimony to reach a guilty verdict. Reversed and remanded.