787
Submitted January 17, 2019, affirmed March 11, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
DENIS S. SMITH,
aka Denis Smith,
Defendant-Appellant.
Multnomah County Circuit Court
17CR00076; A165221
462 P3d 310
In this criminal case, defendant appeals from a judgment convicting him of
driving under the influence of intoxicants, ORS 813.010, and reckless driving,
ORS 811.140. Defendant argues that under State v. Banks, 364 Or 332,
434 P3d
361 (2019), the trial court erred by admitting evidence that he refused to take
a breath test and by instructing the jury that it could consider his refusal to
take a breath test in determining guilt. Although defendant took exception to
the jury instruction, he did not object to the admission of his breath-test refusal.
Held: Defendant’s alleged error—that the trial court erred in admitting evidence
of his refusal—did not constitute plain error because it was neither obvious nor
apparent. Moreover, because the Court of Appeals rejected the underlying premise of defendant’s argument challenging the jury instruction, it could not reach
defendant’s proposed conclusion that the trial court erred in instructing the jury
as it did.
Affirmed.
John A. Wittmayer, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Sara F. Werboff, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Timothy A. Sylwester, Assistant
Attorney General, filed the brief for respondent.
Before Powers, Presiding Judge, and Egan, Chief Judge,
and Lagesen, Judge.
POWERS, P. J.
Affirmed.
788 State v. Smith
POWERS, P. J.
In this criminal case, defendant appeals from a
judgment convicting him of driving under the influence of
intoxicants (DUII), ORS 813.010, and reckless driving, ORS
811.140. Defendant argues that under State v. Banks, 364
Or 332,
434 P3d 361 (2019), the trial court erred by admitting evidence that he refused to take a breath test and by
instructing the jury that it could consider his refusal to
take a breath test in determining guilt. Although defendant took exception to the jury instruction, he did not object
to the admission of his breath-test refusal and therefore
requests plain-error review. The state remonstrates that
the trial court did not plainly err because, unlike the defendant in Banks that objected to the admission of the breath-test refusal, defendant did not challenge the admission of
that evidence but merely took exception to the related jury
instruction, which in the state’s view is an accurate statement of the law. We affirm.1
The relevant facts are not in dispute. Defendant
crashed his car into the center median of I-84 in Portland.
Before the crash, other drivers saw defendant swerving from
lane to lane attempting to pass other cars. Officer Tobey
responded to the crash and observed the smell of alcohol
on defendant’s breath and that defendant had trouble balancing. Believing that defendant had been drinking, Tobey
called for a traffic officer to conduct a DUII investigation.
Officer Hedges responded and also noted the smell of alcohol
on defendant’s breath and that defendant had trouble balancing, slurred speech, and that his eyes were unfocused.
Defendant denied drinking and refused Hedges’s request to
perform field sobriety tests, and eventually he was arrested.
After his arrest, defendant complained of shoulder
pain and was transported by ambulance to the hospital.
At the hospital, medical staff declined to admit defendant
because he refused to answer any questions. Hedges then
transported defendant back this patrol car and read the
implied consent form to defendant, at which point, defendant was crying and not listening. After reading him the
1
We also reject defendant’s argument that the trial court improperly admitted testimony regarding his behavior at the time of arrest without discussion.
Cite as 302 Or App 787 (2020) 789
implied consent form, Hedges asked defendant if he would
take a breath test and, when defendant did not respond,
Hedges took defendant’s nonresponse as a refusal and took
him to jail.
At trial, defendant did not object to the admission
of his refusal to take a breath test but later objected to a
jury instruction regarding his refusal.2 Defendant objected
on the grounds that the instruction “constitute[d] burden
shifting,” and was “also a comment on a defendant’s exercise of constitutional rights to not incriminate oneself, and
also to not help in an investigation against [a defendant].”
The trial court overruled the objection. Ultimately, the jury
found defendant guilty of DUII and reckless driving.
On appeal, defendant’s arguments rely on the Supreme
Court’s recent decision in Banks. In Banks, the defendant
similarly refused to take a breath test after being arrested
for DUII. At trial, the defendant moved to suppress evidence
of his refusal to consent to take a breath test, arguing that
his refusal would violate his right against self-incrimination
under Article I, section 12, of the Oregon Constitution, and
his right against unreasonable searches and seizures under
Article I, section 9, of the Oregon Constitution. The trial court
denied his motion, and we affirmed the trial court’s decision.
State v. Banks, 286 Or App 718,
401 P3d 1234 (2017), rev’d,
364 Or 332,
434 P3d 361 (2019). On review, the Supreme
Court reversed, concluding that the state had failed to meet
its burden to establish that the officer’s request for a breath
test “was solely a request for physical cooperation and could
not reasonably be understood as a request for constitutionally significant consent to search.” Banks,
364 Or at 343.
In its decision, the court clarified the “difference
between a request for physical submission and a request
for express consent to search,” in the context of an officer
asking a driver to take a breath test under the implied
2
Defendant took exception to the following jury instruction:
“If you find that the defendant refused to submit to a chemical test of his
breath after being advised of his rights and the consequences of his refusal,
you may consider his refusal to submit to the breath test in determining
whether he was or was not under the influence of intoxicants. You may give
his refusal to submit to the breath test such weight as you feel is appropriate
in reaching your verdict.”
790 State v. Smith
consent statutes. Id. at 342. The court explained that, after
the defendant moved to suppress evidence of his refusal, the
state, as the proponent of the evidence, then had the burden
to “demonstrate that the officer’s question could reasonably
be understood only as a request to provide physical cooperation and not as a request for constitutionally-significant consent to search” the driver.
Id. at 343. Ultimately, the court
concluded that, because the officer’s “question—‘[W]ill you
take a breath test?’—was ambiguous,” the state had failed
to establish that the defendant’s refusal to take a breath
test was admissible as evidence of his guilt.
Id.
In this case, defendant concedes that he failed to
object to the admission of his breath test refusal as evidence
but requests plain-error review in light of Banks. See State
v. Jury, 185 Or App 132, 136,
57 P3d 970 (2002), rev den,
335
Or 504 (2003) (explaining that we determine error based on
the law as it existed at the time of the appellate decision,
not at the time of the disputed ruling, and acknowledging the “ostensibly incongruous results” by that approach).
Defendant also renews his challenge to the breath-test
refusal jury instruction; specifically, defendant argues that
the instruction “explicitly invited the jury to draw the inference that the court concluded was improper in Banks.”
In response, the state argues that, unlike the defendant in Banks, defendant did not object to the admission of
evidence of his refusal, and thus he forfeited his rights under
Article I, section 9. The state also asserts that the factual
record does not establish a basis for applying Banks, and
that, “because defendant chose not to object to [the] admission of the evidence of his ‘refusal,’ the state was deprived
of an opportunity to make a record that that evidence was
properly admitted on an alternative ground.” Regarding the
jury instruction, the state contends that, because Banks
does not apply to the evidence of defendant’s refusal, defendant’s objection to the jury instruction is without merit.
Defendant acknowledges that his first assignment of
error is unpreserved; but asks for plain-error review. ORAP
5.45(1). Plain-error review involves a two-step inquiry in
which we determine, first, whether the error is plain, and
second, whether to exercise our discretion to consider the
Cite as 302 Or App 787 (2020) 791
error. Ailes v. Portland Meadows, Inc.,
312 Or 376, 381-82,
823 P2d 956 (1991). To constitute plain error, the error must
(1) be an error of law, (2) be obvious, i.e., not reasonably in
dispute, and (3) be “apparent on the record without requiring the court to choose among competing inferences.” State
v. Vanornum,
354 Or 614, 629,
317 P3d 889 (2013).
Here, defendant’s alleged error—that the trial court
erred in admitting evidence of his refusal to take a breath
test—is not plain because it is neither obvious nor apparent. Importantly, Banks does not establish that evidence of
a refusal to take a breath test is per se inadmissible. Rather,
Banks concludes that the admissibility of a driver’s refusal
to take a breath test depends on the nature of the officer’s
request.
Given that important distinction drawn in Banks,
defendant’s claim of error is not obvious. The court explained
that, when an officer asks a driver whether she or he will
take a breath test, the question “may be either (1) a request
under ORS 813.140 for express consent to search the driver’s
breath that, if given, will supply a constitutional basis for
the test; or (2) a request under ORS 813.100 that the driver
‘submit’ to a breath test that finds its constitutional justification elsewhere.”3 Banks, 364 Or at 342. Consequently,
if the officer is seeking “a driver’s physical cooperation in
conducting a constitutionally authorized search,” a driver’s
refusal to cooperate can be admitted as evidence of the driver’s
guilt.
Id. If, on the other hand, the officer is merely seeking
consent to search the driver’s breath, “the invocation of a
constitutional right [against unreasonable searches] cannot
be admitted at trial as evidence of” the driver’s guilt.
Id.
In this case, however, the admissibility of defendant’s refusal is reasonably in dispute; that is, we cannot
discern whether the officer sought defendant’s physical cooperation to take a breath test or whether the officer sought for
defendant to “submit” to a breath test. Accordingly, because
the admissibility of a defendant’s refusal depends on that
distinction, the alleged error is not obvious.
3
Recently, the legislature has amended ORS 813.100 and ORS 813.140; however, because those amendments did not go into effect until January 1, 2020, they
do not bear on our analysis in this case. See Or Laws 2019, ch 475, §§ 1, 7.
792 State v. Smith
Further, defendant’s claim is not “apparent on the
record” for purposes of plain-error review. Defendant argues
that, under Banks, “[w]hen the state seeks admission of a
defendant’s refusal to take a breath test, the state, as the
proponent of the evidence, has the burden to establish its
admissibility.” Id. at 343. Although Banks did place the burden on the state to prove that an “officer’s question could
reasonably be understood only as a request to provide physical cooperation and not as a request for constitutionally-significant consent to search,” that burden exists only “after
[an] appropriate objection has been raised.” Id. (quoting
State v. Fish, 321 Or 48, 59,
893 P2d 1023 (1995)); see also
State v. Carlson,
311 Or 201, 208,
808 P2d 1002 (1991) (noting that “[t]he proponent of evidence under OEC 801(4)(b)(B)
has the burden, after appropriate objection has been raised,
of establishing” the admissibility of evidence).
Thus, in this case, without an objection to the admissibility of the challenged evidence, we are left to choose
between competing inferences. Undoubtedly, the record may
have developed differently had defendant objected to the
admission of his breath-test refusal, i.e., the state may have
provided additional evidence to meet its burden or the state
may have failed to show that it was asking defendant to
“submit” to a breath test. Regardless, holding that the trial
court erred in admitting such evidence would require us
to presuppose that the state would not have met its burden of establishing that the officer sought defendant’s physical cooperation in conducting a constitutionally authorized
search. That is a conclusion that we decline to make on
plain-error review. See State v. Gornick, 340 Or 160, 170,
130 P3d 780 (2006) (concluding that, because “the record
d[id] not clearly show that the trial court erred, only that
it may have erred,” the alleged error was not apparent on
the record). Accordingly, because the alleged error is neither
obvious nor apparent, it is not reversible as plain error.
We turn to defendant’s challenge to the disputed
jury instruction. As defendant points out, that challenge,
unlike his challenge to the admission of the evidence, is preserved. However, defendant’s argument on appeal is narrow;
he argues only that, “because the evidence is inadmissible,
Cite as 302 Or App 787 (2020) 793
it is improper for the trial court to instruct the jury that it
may infer that a defendant is intoxicated from his refusal to
take a breath test.”
Under the circumstances presented here, defendant’s argument is not well taken. As we have explained,
the Supreme Court held in Banks that the admissibility of a
driver’s refusal to take a breath test depends on the nature
of the officer’s request, and the state bears the burden of
showing admissibility after an appropriate objection has
been raised. See 364 Or at 343. Here, because defendant did
not object to the admission of evidence of his refusal, the
state had no reason to develop the necessary record. Thus,
we have no way of knowing whether, as defendant asserts,
the evidence was inadmissible. Because we disagree with
defendant’s premise that the evidence of his refusal was
inadmissible, we cannot reach his proposed conclusion that
the trial court erred in instructing the jury as it did.
Affirmed.
