State v. Banks

"Article I, section 9, of the Oregon Constitution prohibits unreasonable searches and seizures of 'persons'" and "a search of one's breath is protected under that provision." State v. Newton, 291 Or 788, 800, 636 P2d 393 (1981), overruled on other grounds by State v. Spencer, 305 Or 59, 750 P2d 147 (1988).

Defendant appealed a DUII conviction.  Defendant assigned error to the Court of Appeals holding that Defendant's rights against unreasonable searches and seizures were not violated by the use of his refusal to submit to a breath test as evidence at trial.  Defendant argued that "his refusal to take the breath test was an invocation of his right under Article I, section 9, of the Oregon Constitution;" and argued that the exercise of a constitutional right cannot be used as evidence of his guilt.  The state argued that (1) the defendant impliedly consented to the breath test through his choice to drive on the public highway; (2)  defendant was not asked to waive his Article I, section 9 right, but was instead asked to cooperate with a lawful breath test; and (3) the officer had probable cause and exigent circumstances to obtain the breath sample without a warrant and without consent.  "Article I, section 9, of the Oregon Constitution prohibits unreasonable searches and seizures of 'persons'" and "a search of one's breath is protected under that provision." State v. Newton, 291 Or 788, 800, 636 P2d 393 (1981), overruled on other grounds by State v. Spencer, 305 Or 59, 750 P2d 147 (1988).  The Court held that the Court of Appeals erred in allowing the refusal as evidence because (1) implied consent statutes permit a person to refuse to submit to a breath test, (2) refusal to answer a request to submit to a breath test can be seen as an invocation of a constitutional right or a refusal to cooperate without constitutional significance, and (3) an individual should be able to act on the presumption that a warrantless search is unreasonable, and "permitting the state to adduce evidence of the exercise of that right would place impermissible burden on its assertion."  The decision of the Court of Appeals is reversed, the judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.