State v. Brandes

                                      672

   Submitted February 24, 2020, reversed and remanded February 24, 2022


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                    RYAN JOHN BRANDES,
                      Defendant-Appellant.
                 Washington County Circuit Court
                      18CR20692; A169204
                                  

     Defendant appeals a judgment convicting him of driving under the influence
of intoxicants (Count 1), reckless driving (Count 2), and recklessly endangering
another person (Count 3). Defendant argues that the trial court erred in denying his motion to suppress evidence of his refusal to take a breath test and in
instructing the jury that it could consider that refusal as evidence of his guilt
because, under State v. Banks, 

, 

 (2019), his refusal constituted the invocation of his constitutional right to refuse to consent to a warrantless search and was therefore inadmissible. Held: Viewing the totality of the
circumstances, the state failed to meet its burden to establish the admissibility
of defendant’s breath-test refusal under Banks where nothing in the record established the circumstances of the officer’s breath-test question. Moreover, defendant verbally assenting while physically refusing to take the breath test was not
sufficient evidence to satisfy the state’s burden, because his conduct, which was
communicating mixed messages, was ambiguous. Therefore, the trial court erred
in allowing evidence of defendant’s refusal and in giving the challenged instruction. The error was not harmless as to all counts.
    Reversed and remanded.



    Eric Butterfield, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Stacy M. Du Clos, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Leigh A. Salmon, Assistant Attorney
General, filed the brief for respondent.
  Before Ortega, Presiding Judge, and Shorr, Judge, and
James, Judge.
    ORTEGA, P. J.
    Reversed and remanded.
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           ORTEGA, P. J.
         Defendant appeals a judgment convicting him of felony driving under the influence of intoxicants (DUII), ORS
813.0101 (Count 1); reckless driving, ORS 811.140 (Count 2);
and recklessly endangering another person, ORS 163.195
(Count 3). The court sat as factfinder on Counts 2 and 3; the
verdict on Count 1 was based on a unanimous jury verdict.
Defendant asserts three bases for reversal of those verdicts.
         First, defendant argues that, on Count 1, the trial
court erred in instructing the jury that it could reach a
nonunanimous verdict and that the error entitles him to
reversal because it constituted structural or plain error.
Although we agree that the jury instruction was erroneous
under Ramos v. Louisiana, 

, 

, 

 (2020), for the reasons explained by the Oregon
Supreme Court in State v. Flores Ramos, 

,

, (2020), and State v. Chorney-Phillips, 

, 

 (2020), we reject defendant’s structural and plain error arguments. Defendant is therefore not
entitled to reversal on that basis.
         Next, defendant argues that the trial court erred in
denying his motion to suppress evidence of his refusal to take
a breath test and in instructing the jury that it could consider that refusal as evidence, asserting two legal grounds.
First, defendant contends that the admission of his breath-test refusal violated his Article I, section 9, right to be free
from warrantless searches because, under State v. Banks,

, 

 (2019) (Banks II), his refusal constituted the invocation of his constitutional right to refuse
to consent to a warrantless search and was therefore inadmissible. Second, defendant argues that his Article I, section 12, Miranda rights were violated, because the officer’s
request that he take a breath test constituted improper
interrogation after he had invoked his right to counsel. The
state responds that defendant failed to preserve the arguments he makes on appeal and that, in any event, the trial
court did not commit any error, plain or otherwise.
    1
      Following defendant’s conviction, ORS 813.010 was amended. See Or Laws
2021, ch 490, § 1. However, we refer to the current version of the statute because
those amendments do not affect our analysis.
674                                                       State v. Brandes

          As we will explain, we conclude that defendant’s
arguments are preserved and that his breath test refusal
was inadmissible under Article I, section 9, which obviates
the need to address his Article I, section 12, argument. We
therefore reverse and remand.
          In reviewing the trial court’s denial of a motion to
suppress, we accept the trial court’s factual findings that
are constitutionally supported by the evidence and determine “whether the trial court applied legal principles correctly to those facts.” State v. Ehly, 

, 

 (1993). We limit our discussion of the facts to the record
that developed at the pretrial hearing, State v. Pitt, 

, 

 (2012), noting where certain facts
were in dispute and providing more detailed facts as they
become relevant in our discussion. Further, although resolution of this case turns on defendant’s Article I, section 9,
argument, we provide the relevant background facts related
to defendant’s Article I, section 12, argument, as well as
defendant’s Article I, section 11, argument that he raised
below but abandons on appeal, as necessary context for the
state’s preservation challenge.
          Officer Boyll arrested defendant for DUII and, after
taking him into custody, advised him of his Miranda rights.
Defendant indicated that he understood his rights but did
not ask to speak to an attorney or invoke his right to remain
silent at that point. Boyll transported defendant to the police
station.2
          At the station, Boyll read defendant his “implied consent” under the implied consent laws3 and then, at defendant’s
     2
       It is unclear from the motion-to-suppress hearing transcript whether Boyll
read defendant his Miranda rights at the scene or at the police station.
     3
       We understand Boyll’s testimony that he read defendant his “implied
consent” to refer to the statutory rights and consequences of which officers are
required to inform defendants under the implied consent laws before a breath
test may be administered. See ORS 813.100 (providing that “[b]efore [a chemical test of a person’s breath or blood for alcohol content] is administered the
person requested to take the test shall be informed of consequences and rights
as described under ORS 813.130”); ORS 813.130 (setting forth the “information about rights and consequences for purposes of ORS 813.100 and 813.410”).
However, Boyll did not provide any testimony to explain the required statutory
information or describe the specific information that he provided to defendant.
Further, the Implied Consent Combined Report, which is the standard form that
officers read to defendants before asking them to take a breath test, was not
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request, brought him to a secluded room equipped with a
phone book and an Oregon State Bar directory and afforded
him the opportunity to call an attorney. Boyll then placed
defendant back in handcuffs, escorted him to a different
room, and asked him to take a breath test. Defendant made
four or five attempts to provide a breath sample but, based
partially on defendant’s physical conduct, Boyll believed
that defendant was intentionally preventing the machine
from recording a breath sample and ultimately concluded
that defendant had refused the breath test.
         Before trial, defendant moved to suppress his
breath-test refusal on three legal grounds, all raised in
written memoranda. First, defendant argued that Boyll’s
request that he take a breath test after placing him in custody and after he had invoked his right to counsel constituted unlawful interrogation under Article I, section 12.
Second, defendant argued that his right to counsel under
Article I, section 11, was violated because Boyll did not provide him with sufficient time to consult with an attorney
before requiring him to decide whether to take a breath test.
See State v. Spencer, 

, 

 (1988)
(holding that “an arrested driver has the right upon request
to a reasonable opportunity to obtain legal advice before
deciding whether to submit to a breath test” under Article I,
section 11).
         Third, defendant argued that his right under
Article I, section 9, to refuse a warrantless search would be
violated by admission of his breath-test refusal. Although
he did not contest that his actions amounted to refusing to
take the breath test, he maintained that, in refusing, he
was “[d]eclining to supply consent to a warrantless search,”
which “is not the same as obstructing a valid search.” He
contended that, “[a]lthough a person does not have the right
to resist the government in obtaining evidence if they have
a warrant nor [if a] warrant exception [applies], the person
does not have to consent to the search and seizure.” Here,
according to defendant, Boyll chose not to rely on a warrant

admitted into evidence at the motion-to-suppress hearing. See State v. Swan, 

, 127 n 4, 

 (2018) (“The Implied Consent Combined Report is an
administrative form prepared by the Department of Transportation to comply
with multiple statutory directives.”).
676                                         State v. Brandes

or warrant exception to conduct the search of his breath, but
instead relied on defendant’s consent—yet defendant had a
constitutional right to withhold that consent without it being
used as substantive evidence of his guilt. Defendant noted
that, although this court had decided against his Article I,
section 9, argument in State v. Banks, 

, 

 (2017) (Banks I), rev’d, 

, 

(2019), the Oregon Supreme Court had accepted review in
that case to address that argument.

         Defendant later filed a supplemental memorandum
in support of his motion to suppress, alerting the court that
the Oregon Supreme Court had accepted review of State v.
Koch, 

, 

 (2017) (Koch I), rev dismissed as improvidently allowed, 

 (2019) (Koch II),
to resolve whether a request to take a breath test constitutes
interrogation under Article I, section 12. In Koch I, which
we affirmed without opinion, the defendant had argued in
relevant part that State v. Swan, 

, 

 (2016) (Swan I), rev’d on other grounds, 

,

 (2018) (Swan II), where we held that asking a
suspect to take a breath test does not constitute interrogation under Article I, section 12, was wrongly decided. Defendant here attached to his supplemental memorandum, as
legal support, the defendant’s brief that was filed in Koch I.

         At the hearing on defendant’s motion to suppress,
Boyll testified to the circumstances surrounding defendant’s
request to speak to an attorney, giving conflicting testimony
as to whether defendant had asked to make a phone call generally, or whether he had specifically requested to speak to
an attorney. Further, the state elicited testimony from Boyll
regarding the amount of time he gave defendant to consult
with an attorney, the details of how he had advised defendant of his Miranda rights, defendant’s response that he
understood those rights, and that defendant did not invoke
his right to remain silent or request an attorney at the time
he was advised of those rights. Boyll also testified to the
circumstances surrounding his request that defendant take
a breath test and defendant’s response. In response to the
question, “How was [defendant’s] behavior after he said he
would take the breath test?” Boyll testified as follows:
Cite as 

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       “[Defendant] was making the facial expressions …
   like he was blowing into the machine, but there was no
   audible tone coming from the machine like it’s supposed to,
   so I kept coaching him how to get a proper sample. He kept
   saying he wasn’t refusing and that he was trying to give a
   sample, but … he ultimately wouldn’t or couldn’t.
       “So, I even took out a mouthpiece, a separate one and
   blew into … the mouthpiece to show how easy it is and he
   still made the facial expressions like he’s blowing as hard
   as he could, but … no audible tone came out. So, after
   four, five attempts, I consider that a refusal because he
   wasn’t following instructions.”
        In closing, defendant argued that he was not given
a reasonable amount of time to consult with an attorney
before deciding whether to take the breath test. The court
denied defendant’s motion and his request for findings, commenting, “I trust our appellate courts to figure it out.”
        At trial, Boyll testified to the circumstances surrounding defendant’s breath test and that he considered
defendant’s conduct to constitute a refusal, and the state
submitted the Implied Consent Combined Report, which
indicated that defendant had refused the breath test. Over
defendant’s objection, the court gave Uniform Criminal Jury
Instruction (UCrJI) 2712, providing:
      “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.”
The jury convicted defendant, and this appeal followed.
         On appeal, defendant argues that the trial court
erred in denying his motion to suppress evidence of his
breath-test refusal and in instructing the jury that it could
consider that evidence in determining his guilt. Although
defendant abandons his Article I, section 11, right-tocounsel challenge, he otherwise raises the same arguments
he made below. Specifically, he argues that he was improperly interrogated under Article I, section 12, because, under
678                                               State v. Brandes

that provision, asking a suspect in custody to take a breath
test after he has invoked his right to counsel constitutes
improper interrogation, and that Swan I and the cases it
relied on, which concluded otherwise, were wrongly decided.
Further, defendant argues that the admission of his breath-test refusal violated his right under Article I, section 9, to
refuse a warrantless search under the new rule announced
in Banks II, which was decided following his conviction. As
previously noted, the state responds that defendant failed to
preserve those arguments and that, even if preserved, the
trial court did not commit any error.
        We begin by addressing the state’s preservation
challenge. Before the evidentiary portion of the suppression
hearing, the state summarized the legal issues before the
court that day:
      “[State:] Your honor, … my understanding of my
   reading of … defendant’s motion to suppress is that the
   defense is not challenging the validity of the stop or anything that has to do with the field sobriety tests.
       “The issue in this motion is very narrow and it really
   has to do with a timeline of what occurs after defendant’s
   taken into custody. Is [defendant] given a reasonable opportunity to talk to an attorney, did he invoke his right …
   to remain silent or to counsel and was there a custodial
   interrogation. Does asking for permission to take a breath
   test … constitute an unreasonable search. So, just kind of
   to limit those issues and not have to go through the entire
   stop.”
The court responded, “[t]hat was my understanding based
on the motion,” and then asked defense counsel, “Is that correct?” The following is defense counsel’s response and subsequent colloquy with the court, which underlies the state’s
preservation challenge:
      “[Defense counsel:] Yeah. You know, I stepped out for
   some of it, but if I heard correctly—
      “[The court:] You’re just trying to keep out the refusal?
      “[Defense counsel:] It’s exactly it, yep.
     “[The court:] Okay. And … the basis for that is just
   whether or not he had adequate opportunity to consult—
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      “[Defense counsel:] Yeah.
      “[The court:] —with counsel, essentially.
      “[Defense counsel:] That’s exactly right.
      “[The court:] Okay. Thank you. Did you have any opening remarks, [Defense Counsel]? I’ve read your motion and
   the supplemental memorandum.
       “[Defense counsel:] Right. It’s just going to come down
   to, you know, ability to call out on that telephone. How
   much time was allowed to call out on the telephone to consult counsel.”
         The state concedes that defendant’s written memoranda in support of his motion to suppress before the trial
court included the arguments under Article I, sections 9
and 12, that he now raises on appeal. Further, the state
acknowledges that the rules of preservation do not require
that parties orally reiterate all of their written legal arguments at the hearing on their motions. However, according
to the state, “[w]hen asked to clarify the issues,” defendant
communicated to the court that suppression “hinged on one,
and only one, legal argument,” which was whether he was
afforded sufficient time under Article I, section 11, to consult with counsel. That representation, the state contends,
“effectively informed” the trial court and the state that he
was electing to proceed on that single issue and “effectively
waiv[ing] or abandon[ing] the remaining arguments in his
written submissions.” We disagree.
         In general, if an issue has not been presented to
the trial court, we will not consider it on appeal. Peeples v.
Lampert, 

, 

 (2008); ORAP 5.45(1).
The purposes of the preservation rule are pragmatic. State
v. Walker, 

, 

 (2011). One purpose is to ensure that “a trial court [has] the chance to consider and rule on a contention, thereby possibly avoiding an
error altogether or correcting one already made, which in
turn may obviate the need for an appeal.” Peeples, 

. The rule also “ensures fairness to opposing parties,
by requiring that the positions of the parties are presented
clearly to the initial tribunal so that parties are not taken
by surprise, misled, or denied opportunities to meet an
680                                           State v. Brandes

argument.” Walker, 

 (internal quotation marks
omitted). Here, we conclude that the purposes of preservation were served.
          To begin, defendant’s statements and conduct at the
hearing that focused only on his Article I, section 11, argument did not, viewed in the context of then-controlling law,
communicate to the court that he was electing to proceed
only on that legal basis. Defendant alerted the court and
state that then-controlling law did not support his Article I,
sections 9 and 12, arguments, but that both issues were
pending review before the Supreme Court. Therefore, we
understand defendant’s statements and conduct at the hearing, including his representation that his motion to suppress
is “just going to come down to, you know … [h]ow much
time was allowed to call out on the telephone to consult counsel,” viewed in context of then-controlling law, to express his
intent to focus his efforts at the hearing on his Article I, section 11, argument and not that the legal bases of his motion
to suppress had changed to include only that legal argument.
See Bell v. Hendricks, 

, 

 (2019),
rev den, 

 (2020) (rejecting respondent’s argument
that petitioner’s arguments were not preserved because,
“[i]n light of then-controlling authority, which treated petitioner’s … motion as a mechanism to preserve his claims,
he did everything that could be reasonably expected to present the motion and related claims to the court”); see Peeples,

 (“What is required of a party to adequately
present a contention to the trial court can vary depending on
the nature of the claim or argument.”). The state concedes
that defendant’s written memoranda included all three of
his legal arguments. At that point, defendant, who did not
have the burden of proof, was free to focus his efforts at the
hearing on his motion to suppress on his Article I, section 11,
argument, which was the only one that then-controlling law
had not decided against him and was, therefore, his strongest. See Banks II, 

 (“When 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.”); State v. Mejia, 

, 

 (2017) (“[W]e have consistently held that an
issue is preserved for our review if it is presented clearly in
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 (2022)                               681

a written motion, notwithstanding a party’s failure to reiterate all of its arguments at a subsequent hearing.”); State
v. Parnell, 

, 

 (2016) (explaining
that a written motion to suppress “frames the issues that
the court will be required to decide, and it notifies the state
of the contentions that it must be prepared to address at the
hearing on the motion” (internal quotation marks omitted)).
Our understanding of defendant’s statements appears consistent with the trial court’s view because, although having
just agreed with the state that it understood defendant to
be making all three of the legal arguments in his written
memoranda, when the court asked defendant to confirm that
the court and the parties were on the same page with defendant’s legal challenges, the court summarized only defendant’s Article I, section 11, argument.

          Moreover, there is nothing in the record to suggest
that the state or the trial court understood defendant’s statements or conduct at the hearing as the state now asserts. As
an initial matter, we disagree with the state’s premise that,
when the court asked defendant, “Is that correct?” the court
was asking defendant to “clarify” the issues. When the state
initiated the discussion at the beginning of the hearing, it
was summarizing the legal issues that defendant’s motion
implicated to “just kind of to limit those issues and not have
to go through the entire stop.” And, in summarizing what
those issues were, the state included, based on its “reading
of … [defendant’s] motion to suppress,” all three of defendant’s legal arguments raised in his written memoranda.
The court agreed, stating “[t]hat was my understanding
based on the motion.” Further, when the court later invited
opening remarks, it told defendant, “I’ve read your motion
and the supplemental memorandum,” essentially cuing
defendant that he need not summarize all of the arguments
in his written materials because the court had read and
understood them. Indeed, the state did not limit Boyll’s testimony to issues related only to defendant’s Article I, section 11,
challenge, but also focused on the other issues. Thus, the
record reflects that the state and the court understood that
all three of the legal issues that defendant had raised in his
written memoranda were before the court. We thus proceed
to address the merits.
682                                          State v. Brandes

         We begin by addressing defendant’s argument that
his breath-test refusal was inadmissible under Article I,
section 9, because the success of his Article I, section 12,
challenge depends in part on the outcome of that legal
issue. See State v. Shevyakov, 

, 

 (2021) (concluding that “asking for consent to search,
including requesting that a suspect perform the physical
[field sobriety tests], constitutes impermissible interrogation [under Article I, section 12,] unless the law precludes the
use of a person’s refusal against the person at trial” (emphasis
added)).

         To frame the parties’ arguments, we begin by summarizing the applicable law. 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.”
Or Const, Art I, § 9. “A search of one’s breath is protected
under that provision.” Banks II, 

. Therefore,
unless an exception to the warrant requirement applies,
Article I, section 9, mandates that law enforcement obtain
a warrant before conducting a search. Id.; see Or Const,
Art I, § 9 (“[N]o warrant shall issue but upon probable
cause.”). One such exception is when a person voluntarily
consents to the search, “thereby waiving the right to insist
that the government obtain a warrant.” Banks II, 

. However, when a person refuses to provide consent and, instead, asserts the person’s constitutional right
to insist that the government obtain a warrant, that refusal
may not be admitted at trial as evidence of the person’s guilt.

.

         In Banks II, 

, the Oregon Supreme
Court changed the legal landscape in DUII prosecutions
by announcing a new test for determining the admissibility of a breath-test refusal against a defendant in a DUII
prosecution. In that case, the defendant was involved in a
single-car accident and was arrested at the scene and transported to the police station after officers determined that
he was intoxicated. 

. At the station, the officer
informed the defendant that he was there because he had
been in a crash and “ ‘smelled of an alcoholic beverage pretty
strongly,’ ” and the officer
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   “explain[ed] that he was ‘going to read [defendant] some
   information’ and that he would ‘like [defendant] to open
   [his] mouth.’ When [the officer] asked defendant, ‘Can I
   look into your mouth,’ defendant responded, ‘No.’ [The
   officer] then explained that, ‘if you don’t [open it], then I
   can’t help you maybe take a breath test.’ After defendant
   responded that he would not open his mouth, [the officer]
   read defendant the ‘rights and consequences’ required by
   law. [The officer] explained that defendant was ‘about to be
   asked to submit to a breath test … under the implied consent law, and he provided information on the consequences
   for refusing or failing the test, including that his refusal
   to submit to the breath test ‘may be offered against [him].’
   After reading the form, [the officer] asked defendant, ‘[W]ill
   you take a breath test?’ Defendant responded that he would
   not.”
Id.at 334-35 (ellipsis in original; some brackets in original).
The trial court admitted the defendant’s breath-test refusal
over his objection. Id. at 335.
         Following his conviction, the defendant appealed,
arguing in relevant part that the trial court had erred in
denying his motion to suppress evidence of his refusal to
consent to the breath test because that refusal constituted
an assertion of his constitutional right under Article I, section 9, to refuse to provide his consent to a warrantless
search. Id. at 336. The state argued in response that
   “when [the officer] asked defendant to take a breath test,
   [the officer] was not asking defendant to provide a constitutional basis for that search; rather, [the officer] had a constitutional basis for the search provided by another warrant
   exception—probable cause and exigent circumstances—and
   was seeking only defendant’s agreement to submit to the
   requested test. The state argues that defendant’s refusal to
   take the breath test was a refusal to perform a physical act
   and not an invocation of his constitutional right to insist on
   a warrant.”
Id. at 340.
        In answering that issue, the court explained that,
under the statutory scheme of the implied consent laws,
   “an officer’s question to a driver asking whether the driver
   will take a breath test may be either (1) a request under
684                                              State v. Brandes

   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. Stated another way, a driver’s refusal
   to answer that question affirmatively may be either an
   invocation of a constitutional right or a refusal to cooperate
   without constitutional significance.”
Id. at 342 (footnote omitted). Based on that framing, the
court announced the test to determine the admissibility
of a defendant’s breath-test refusal in a DUII prosecution.
The court first explained that the state, as the party seeking admission of the refusal, has the burden to establish its
admissibility. Id. at 343. Next, the court held that, to meet
that burden, the “state must 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.” If the state
does not meet its burden to establish that fact, the driver’s
refusal is inadmissible at trial to prove the driver’s guilt. Id.
         Applying the test to the facts of that case, the court
held that the state did not meet its burden to establish the
admissibility of the defendant’s refusal. The court explained
that the officer’s question, “ ‘[W]ill you take a breath test?’
was ambiguous,” because it could have been either a request
for the defendant “to physically submit to a test that was
justified by a warrant exception,” or it “could have been asking defendant for his consent to search, thereby establishing
a warrant exception.” Id. (bracket in original). Further, the
court stated that, although the officer had told the defendant
that “he would be asked to submit to a breath test ‘under the
implied consent law,’ … he did not specify the aspect of the
implied-consent law to which he was referring.” Id.
         Here, defendant argues that the state likewise
failed to meet its burden to establish the admissibility of
his breath-test refusal. He contends that, like in Banks II,
Boyll’s request was ambiguous as to whether he was
requesting physical cooperation or seeking constitutionally significant consent. Therefore, according to defendant,
his breath-test refusal was inadmissible under Article I,
section 9, and the court erred in concluding otherwise. As
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 (2022)                             685

such, defendant argues that the uniform jury instruction on
breath-test refusals (UCrJI 2712), which told the jury that
it could consider his breath-test refusal as evidence of his
guilt, inaccurately stated the law under Banks II. Therefore,
in defendant’s view, the trial court also erred in giving that
jury instruction.
          In responding to that argument, the state begins
by asking us to view Banks II as requiring an evaluation
of the totality of the circumstances. It urges that, although
the Banks II test focuses on the circumstances surrounding
the officer’s request, the “ultimate question is not how the
officer phrased the request” but rather, “Did the defendant
invoke his constitutional rights, or was he merely refusing
to provide physical cooperation?” (Emphasis in original.)
The state concedes that the officer’s phrasing of the question
is a fact that will bear on the determination of that ultimate
issue. However, according to the state, the assessment of
whether the defendant has exercised a constitutional right
must nonetheless be made in light of the totality of the circumstances as it is in other legal contexts, such as when
determining the scope of a defendant’s consent to search.
See State v. J. D. H., 

, 

(2018), rev den, 

 (2019).
          With that reframing, the state argues that, here,
the record establishes that defendant understood Boyll’s
request to be for physical compliance with a test that was
justified by a warrant exception, and not that Boyll was
seeking defendant’s consent to supply a constitutional
basis to conduct the search. That is so, the state continues,
because, although defendant “expressly consented” to take
the breath test, he only pretended to blow into the machine.
Defendant’s physical conduct, in the state’s view, was “quite
literally, a refusal to perform the physical act necessary for
the constitutionally-authorized search.” Thus, the state contends, under Banks II, defendant’s breath-test refusal was
admissible at trial and the trial court did not err in allowing
evidence of it or in giving the challenged instruction.
        Although we agree with the state that Banks II
does not preclude an assessment of the totality of the circumstances, we nonetheless conclude that, even with such
686                                         State v. Brandes

an assessment, the state failed to meet its burden to establish the admissibility of defendant’s breath-test refusal.

          To begin, we do not read Banks II as establishing
that the only way the state can meet its burden is by looking
to the framing of the officer’s question. Although the court’s
formulation of the test in Banks II focused on the nature of
the officer’s question, the court’s analysis was necessarily
framed by the record before it. In that case, the only relevant facts bearing on the ultimate issue were the circumstances surrounding the officer’s question itself. Indeed, the
state, in framing its argument to the court, focused on the
officer’s breath-test question. The court, in turn, responded
and focused on the circumstances of the officer’s question
in formulating the test. There simply were no other facts in
Banks II that were relevant to resolving the ultimate issue;
we do not understand the court to have foreclosed an analysis
of the totality of the circumstances. See Banks II, 

 (explaining that, under the implied consent statutes, an
officer’s question to a defendant may be a request for express
consent or a request to physically submit to the test or,
“[s]tated another way, a driver’s refusal to answer that question affirmatively may be either an invocation of a constitutional right or a refusal to cooperate without constitutional
significance” (emphasis added)).

          Moreover, a review of the totality of the circumstances, including the officer’s phrasing of the question,
when determining whether “a driver’s refusal to answer [the
breath-test] question affirmatively [is] either an invocation
of a constitutional right or a refusal to cooperate without
constitutional significance,” Banks II, 

, is consistent with the determination of whether a defendant has
invoked a constitutional right in other comparable circumstances. See, e.g., State v. Blair, 

, 

 (2017) (scope of consent based on the totality of the circumstances); State v. Moore, 

, 

(2013), adh’d to as modified on recons, 

, 

 (2014) (“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.”); see
Cite as 

 (2022)                              687

also State v. Roberts, 

, 

(2018) (“We review whether defendant invoked his [Article I,
section 12, right to an attorney] by considering his statement in the context of the totality of circumstances existing
at the time of and preceding their utterance to determine
whether a reasonable officer would understand that defendant was invoking his rights.” (Internal quotation marks
omitted.)).

         Nonetheless, on this record, even considering the
totality of the circumstances, the state has not met its burden to establish the admissibility of defendant’s breath-test
refusal. For a start, the record does not establish precisely
how Boyll asked defendant to take the breath test or provide any other information to illuminate the nature of the
request itself. The only evidence bearing on that fact was
the following colloquy:
      “[State:] After you had [defendant] come out of the
   Intoxilizer room, you went through the observation period
   and you asked him to take a breath test?
      “[Boyll:]   Yes, I did.”
(Emphases added.) That testimony does not tell us how the
question was phrased, or whether Boyll provided any other
information that may have communicated to defendant that
Boyll was seeking only his physical cooperation because
he had constitutional justification to conduct the search,
or whether he was seeking defendant’s express consent to
provide the legal basis for the search. As in Banks II, we
do not know whether Boyll informed defendant under which
aspect of the implied consent law he was seeking consent.
We are cognizant that, at the time of the suppression hearing, Banks II had not yet been decided and the state, therefore, did not have the benefit of that test when developing its
record. Nevertheless, we are obligated to apply the law at
the time the appeal is decided. State v. Jury, 

, 

 (2002), rev den, 

 (2003) (“Error,
in general, must be determined by the law existing at the
time the appeal is decided, and not as of the time of trial.”).
On this record, we conclude that, like in Banks II, Boyll’s
request to defendant does not meet the state’s burden.
688                                                       State v. Brandes

         Defendant’s physical refusal to comply with the test,
even considering his verbal indication that he would comply,
also does not meet the state’s burden here. The state asks us
to rely on defendant’s physical conduct in pretending to blow
into the machine, coupled with his oral communication that
he “was trying to give a sample,” as sufficient evidence that
he was refusing to physically cooperate with the test and
was not asserting his constitutional right to refuse a warrantless search. To begin, defendant’s nonverbal conduct
does not necessarily support the inference that is favored by
the state here. Nonverbal conduct can constitute a manifestation of consent to search, or, in other words, the waiver of
a constitutional right. Likewise, nonverbal conduct can also
constitute the assertion of a constitutional right. See State
v. Briggs, 

, 

, rev den, 

 (2013) (“Consent [under Article I, section 9,] may be
manifested by conduct as well as words.”); id. at 741, 743-
44 (concluding that officers had lawful consent to enter a
hotel room in pursuit of a DUII suspect when, in response
to the officer’s statement to the woman who answered the
door, “I need to talk to the person that just ran in here,” the
woman stepped aside, motioned to the back of the room, and
told the officer that the defendant was in the back); State v.
Larson, 

, 

, rev den,

 (1996) (concluding that the defendant manifested voluntary consent when he responded to the officer’s
request to search his van by, without speaking, removing
the keys from his pocket, unlocking the door, pressing the
door release and opening the door, and then stepping back
to allow the officer’s entry); State v. Fish, 

, 

 (1995) (“Under Article I, section 12, ‘testimonial’
evidence is not limited to verbal statements of fact or disbelief. Rather, … ‘testimonial’ evidence includes any evidence
of conduct communicating the individual’s state of mind.”).4
    4
      Although the parties do not rely on this aspect of the court’s opinion, we
note that, in Banks II, the court stated that it was “only [addressing] a defendant’s verbal exercise of a constitutional right.” 

 n 10 (emphasis
added). However, in context, we do not understand that statement to mean that
a person cannot invoke that person’s constitutional right to refuse to consent by
nonverbal conduct. That is because, immediately preceding that statement, the
court explained that, “[a]lthough a defendant has a right to refuse consent, a
defendant may not have the right to physically obstruct law enforcement officers
who are executing an otherwise lawful search.” 

 Further, related to that same
Cite as 

 (2022)                                                 689

Also, the fact that defendant was verbally assenting while
physically refusing does not alter his constitutional right to
refuse a warrantless search. That is so because a person
always retains the right to revoke even constitutionally significant voluntary consent. See, e.g., State v. Ford, 

, 

 (2008) (describing the consent
exception to the warrant requirement as being “when the
person consents to the search and has not expressly revoked
that consent”).
         Moreover, the state did not satisfy its burden here
based on defendant’s verbal and nonverbal conduct that, by
all accounts, communicated mixed messages and was therefore ambiguous. See State v. Martin, 

, 140-
41, 144, 

 (2008), rev den, 

 (2009) (concluding that the state failed to meet its burden to prove that
the defendant’s “ambiguous” conduct constituted consent
to the officer’s warrantless entry into her home, where the
defendant “flung open the door” in response to the officer’s
knocking and “ran into a back bedroom” leaving the door
open). Without additional evidence clarifying defendant’s
understanding of the question posed, the constitutionality
of the search, and his own conduct, defendant’s ambiguous
communication here cannot establish that defendant’s noncompliance was a conscious refusal to cooperate physically,
not a refusal to consent to a warrantless search.
        Simply put, in the absence of evidence about the
question to which defendant was responding or any other

discussion, the court cited the following passage from the Ninth Circuit, stating
that “ ‘[h]ad [the defendant] forcibly resisted the entry into her apartment, we
might have a different case. We express no opinion on that question. We only
hold that her passive refusal to consent to a warrantless search is privileged conduct which cannot be considered as evidence of criminal wrongdoing.’ ” Id. at 347
(quoting United States v. Prescott, 581 F2d 1343, 1351 (9th Cir 1978) (emphases
added; some brackets in Banks II)). Thus, we understand the court’s statement,
viewed in context, to draw a distinction between a defendant’s exercise of her
constitutional right to refuse to consent to a search, whether verbal or “passively”
nonverbal, and a defendant’s physical obstruction to an otherwise lawful search,
which may not be constitutionally protected. We do not understand the court to
have meant by that statement that a person cannot invoke her constitutional
right to refuse to consent by nonverbal conduct, which would be inconsistent with
other areas of constitutional law in which a person can manifest the invocation of
a constitutional right through nonverbal conduct. Indeed, a person who does not
have the ability to communicate verbally would necessarily have to invoke her
constitutional right through nonverbal conduct.
690                                           State v. Brandes

facts that would bear on the Banks II inquiry, the state has
not met its burden to establish that defendant’s ambiguous
messaging was sufficient evidence on its own to establish
that he was refusing to physically cooperate with the breath
test and was not invoking his constitutional right to refuse
consent to a warrantless search. He could have been doing
both—physically refusing to cooperate to refuse a warrantless search.

         Accordingly, because the state did not meet its burden, evidence of defendant’s refusal to take the breath test
was not admissible under Article I, section 9, and the trial
court erred in denying defendant’s motion to suppress on
that basis. In light of that conclusion, the trial court likewise erred in instructing the jury that it could consider that
refusal as substantive evidence of defendant’s guilt. See
State v. Bistrika, 

, 

, rev den,

 (2014) (explaining that one way for a trial court
to commit instructional error is to provide a jury instruction
that inaccurately states the legal rule to apply to the facts).

         Having concluded that the trial court erred, we must
determine whether those errors were harmless. Or Const,
Art VII (Amended), § 3 (a reviewing court must affirm a
conviction despite a legal error if the error was harmless).
An error is harmless if, after reviewing the entire record, we
can say that there is little likelihood that it affected the verdict. State v. Davis, 

, 

 (2003). As to
Count 1, we readily conclude that the erroneous admission
of the breath test results and the instruction allowing the
jury to consider that evidence in determining defendant’s
guilt was not harmless. In closing, the state emphasized the
error, including arguing to the jury that the only reason a
person would refuse to take the breath test is because “they
know they’re not going to pass.” That error was further
compounded by the state’s jury instruction, which allowed
the jury to infer, based on defendant’s refusal, that he was
intoxicated. See Fish, 

 (“In offering an individual’s refusal to perform field sobriety tests into evidence, the
state wants the jury to infer from the fact of an individual’s
refusal that he or she is saying, ‘I refuse to perform field
sobriety tests because I believe I will fail them.’ ”); see also
Cite as 

 (2022)                             691

State v. Ramirez-Carmona, 

, 

 (2021) (concluding that the trial court’s error in allowing evidence of defendant’s refusal to perform field sobriety
tests in a DUII prosecution was not harmless where, given
the nature of the evidence, jury may have relied on that
refusal to convict).
         We likewise conclude that the erroneous admission
of the breath-test results was not harmless as to the court’s
verdict on Count 2 (reckless driving) and Count 3 (recklessly endangering another person). During the bench trial,
the state asked the court to consider “defendant’s degree of
intoxication when he gets behind a wheel and the manner
in which he drives” to prove the mental state elements of
Counts 2 and 3, and it continued to emphasize defendant’s
intoxication as supporting those convictions. Because the
court may have improperly relied on defendant’s refusal as
evidence of his intoxication, we cannot conclude that the error
had a likelihood of affecting its verdict on Counts 2 and 3.
See State v. Marks, 

, 

(2017) (concluding that error was not harmless in a bench
trial where it was not clear from the record whether the
trial court considered the erroneously admitted evidence in
reaching its verdict). Accordingly, we reverse and remand.
        Reversed and remanded.