State v. Hamilton

When a person refuses to consent to a search, that refusal invokes the person’s constitutional right to insist that the government obtain a warrant, and thus evidence of the refusal may not be admitted at trial as evidence of their guilt. However, refusals to perform breath tests may be admitted as evidence of guilt if the state proves that law enforcement’s requests to perform the tests could be understood only as a request to submit to the physical act, and not as a request that defendant provide constitutionally significant consent to the tests. Banks, 364 Or at 342.

Defendant appealed from a judgment of conviction for two counts of DUII under ORS 813.010, and two counts of reckless driving under ORS 811.140, arguing that the trial court erred by denying her motion to suppress evidence of her refusals to perform field sobriety tests during both traffic stops. Defendant relied on Article I, section 9, to support her argument that the rule announced in Banks, regarding requests for breath tests, also applies to requests for FSTs. Defendant argued that because the deputies’ requests to perform FSTs were ambiguous, the state failed to carry its burden. The state contends that the rule in Banks relied on a statutory right to refuse to physically cooperate with a breath test, but that there is no similar statutory right granted for FSTs. Therefore, the statutory distinction indicates that Banks does not apply to refusals to perform FSTs. Article I, section 9, protects “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure.” The Court found that those constitutional protections apply to FSTs just as they apply to breath tests because, like breath tests, FSTs are searches within the meaning of Article I, section 9. After considering whether the deputies’ questions could be understood only as requests for physical cooperation, the court determined that defendant’s refusal could not be admitted as evidence of her guilt, because the state had not met its burden for either stop. Thus, the trial court erred in denying defendant’s motion to suppress. Convictions on Counts 1 and 3 reversed and remanded; remanded for resentencing; otherwise affirmed.