No. 713 October 9, 2024 401
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
BUDDY RAY WILSON,
Defendant-Appellant.
Lane County Circuit Court
20CR59095; A180236
R. Curtis Conover, Judge.
Submitted August 28, 2024.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Anna Johnson, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and E. Nani Apo, Assistant Attorney
General, filed the brief for respondent.
Before Shorr, Presiding Judge, Mooney, Judge, and Pagán,
Judge.
PAGÁN, J.
Reversed and remanded.
402 State v. Wilson
PAGÁN, J.
Following defendant’s conditional guilty plea, he
was convicted of driving under the influence of intoxicants,
ORS 813.010(4) (Count 1); reckless driving, ORS 811.140
(Count 2); and driving while suspended or revoked, ORS
811.182(4) (Count 3). On appeal, he raises two assignments
of error. He argues that the trial court erred by denying
his (1) motion to exclude blood evidence and (2) motion to
exclude his refusal to consent to a breath test. As to the evidence of defendant’s refusal to consent to the breath test, we
reverse and remand. However, we reject defendant’s challenge to the admission of the blood draw evidence.1
Refusal to Consent to the Breath Test. Trooper
Merritt arrested defendant for driving under the influence
of intoxicants. While transporting him to the Lane County
Jail, Merritt told defendant that if he planned to cooperate
and consent to a breath test, she would instead take him to
the jail in Cottage Grove, which was closer. Merritt continued to discuss the issue with defendant, eventually pulling
the car over and asking him again if he would be willing
to take a breath test. Defendant indicated that he would
not. Merritt transported defendant to the Lane County Jail,
which ultimately led to the charges in this case. Before trial,
defendant filed a motion seeking to exclude, under State v.
Banks, 364 Or 332,
434 P3d 361 (2019), any mention of his
refusal to consent to a breath test while being transported
to the jail. The trial court denied the motion.
A person’s refusal to waive their constitutional right
to not consent to a warrantless search is not admissible at
trial as evidence of the person’s guilt. Banks, 364 Or at 342.
However, under Banks, a defendant’s refusal to perform a
breath test may be admitted as evidence of guilt if the state
proves that law enforcement’s request could be understood
only as a request to submit to the physical act, and not as
a request for a defendant to provide constitutionally significant consent to the test.
Id. at 342-43.
We review the denial of a motion to suppress for
legal error. State v. Vasquez-Villagomez, 346 Or 12, 23, 203
1
We decide defendant’s challenge to the admissibility of the blood draw evidence because the issue is likely to arise on remand.
Cite as 335 Or App 401 (2024)
403
P3d 193 (2009). We are bound by the trial court’s factual
findings if there is evidence in the record to support them.
Id.
The state concedes that Merritt’s questions to defendant in the patrol car, “including” whether he “wanted to
do a breath test” and whether he was “willing to consent to
a breath test,” were ambiguous and subject to suppression
under Banks. We agree and accept the state’s concession. See
Banks, 364 Or at 342-43 (concluding that the defendant’s
refusal was inadmissible where the officer’s question “will
you take a breath test” was ambiguous as to whether the officer was seeking the defendant’s submission to the physical
act or seeking constitutionally significant consent to search).
The parties disagree as to the scope of suppression.
Defendant contends that, because it was defendant’s overall
demeanor and argumentative statements that led Merritt
to believe that he was not agreeing to take a breath test,
all of defendant’s statements and conduct in the car on the
way to the jail constituted his refusal and are subject to suppression. The state argues that Banks requires exclusion
of only “the trooper’s questions and statements relating to
whether defendant was willing to take a breath test” and
any of defendant’s “statements or behavior indicating that
he refused to do so.” We agree with the state. Cf. State v.
Brandes, 317 Or App 672, 687-90,
506 P3d 431 (2022) (assessing whether the state has met its burden under Banks is
based on the totality of the circumstances of the interaction
between the defendant and the officer). We therefore reverse
and remand to allow defendant the opportunity to withdraw
his guilty pleas. See State v. Dinsmore,
342 Or 1, 7,
147 P3d
1146 (2006).
Blood Draw Evidence. After Merritt and defendant arrived at the Lane County Jail, Merritt obtained a
telephonic warrant to search defendant’s blood alcohol content. A phlebotomist from MedExpress performed the blood
draw in defendant’s jail cell. Before trial, defendant moved
to exclude admission of the blood draw results, contending
that the evidence was inadmissible without a sufficient evidentiary record establishing that the phlebotomist met the
qualifications under ORS 813.160(2). See ORS 813.160(2)
404 State v. Wilson
(“In conducting a chemical test of the blood, only a duly
licensed physician or a person acting under the direction or
control of a duly licensed physician may withdraw blood or
pierce human tissue.”). The trial court denied the motion.
On appeal, the state concedes that the record lacks
evidence that the phlebotomist who drew defendant’s blood
was either a licensed physician or acting under the direction
or control of a licensed physician as required under ORS
813.160(2). However, in what is effectively an alternative
basis to affirm,2 the state contends that the court did not err
because ORS 136.432 and State v. Warner, 181 Or App 622,
47 P3d 497, rev den,
335 Or 42 (2002), prohibit exclusion of
blood test results based solely on a failure to demonstrate
compliance with ORS 813.160(2). See ORS 136.432 (providing that a court “may not exclude relevant and otherwise
admissible evidence in a criminal action on the grounds
that it was obtained in violation of any statutory provision”
unless exclusion is required by the federal or Oregon constitutions, certain evidentiary rules of evidence, or the rights
of the press); Warner,
181 Or App at 631-32 (“ORS 136.432
does not allow courts to suppress evidence whose sole taint
is that it was obtained in violation of a statutory provision.”);
Id. (“ORS 813.160(2) does not—either on its face, or in its
statutory context—provide for the exclusion of evidence
obtained when its requirements are violated.”).
Defendant acknowledges that Warner and ORS
136.432 require the admission of blood-test evidence despite
a violation of ORS 813.160(2). However, he contends that
applying ORS 136.432 to justify admission of the evidence
would violate the Due Process Clause of the United States
Constitution, because in his view the statute removes a
“traditional” protection against erroneous deprivations of
liberty and is not an adequate substitute. See, e.g., Honda
Motor Co. v. Oberg, 512 US 415, 426-32,
114 S Ct 2331,
129
L Ed 2d 336 (1994) (holding that Oregon’s limit on review of
2
ORS 136.432 was not argued before, or relied on by, the trial court. However,
the parties do not dispute that this is an appropriate case to decide the state’s
alternative grounds for affirmance. See Outdoor Media Dimensions Inc. v. State
of Oregon, 331 Or 634, 659-60,
20 P3d 180 (2001) (discussing requirements for
appellate court’s discretionary authority to affirm a trial court’s ruling based
legal ground not raised in, or relied on by, the trial court).
Cite as
335 Or App 401 (2024) 405
punitive damage awards violated the Due Process Clause,
where judicial review was a “traditional practice,” and
Oregon did not provide any adequate substitute). He contends that ORS 813.160(2) provides “essential” due process
protections, which the legislature eliminated when enacting
ORS 136.432, because the qualifications protect the physical well-being of person’s subjected to state blood draws
and reduces the risk of contamination of blood samples and
wrongful convictions. See, e.g., Rochin v. California,
342 US
165, 174,
72 S Ct 205,
96 L Ed 183 (1952) (excluding evidence
obtained after police forced the defendant’s mouth open and
subjected him to involuntary stomach-pumping at the hospital, which the Court concluded was “so brutal and so offensive to human dignity” that it violated due process). Finally,
he contends that ORS 136.432 is not an adequate substitute
because it operates only in favor of the prosecution.
We review whether evidence must be excluded
due to the state’s failure to establish compliance with ORS
813.160(2) for legal error. Warner, 181 Or App at 630-35
(applying that standard). We review whether a statute violates the Due Process Clause for legal error. Fox v. Collins,
213 Or App 451, 462,
162 P3d 998, rev den,
343 Or 223
(2007).
We reject defendant’s due process challenge. ORS
136.432(1) expressly allows courts to exclude evidence where
the exclusion is required by the United States Constitution.
That statute does not prevent a defendant from challenging the admissibility of blood draw evidence if the defendant
believes it was taken in a medically inappropriate or unsafe
manner, or under procedures that risked contamination.
ORS 136.432 simply limits challenges to the evidence based
solely on the state’s failure to present evidence of the statutory qualifications under ORS 813.160(2). Consequently,
we are unpersuaded by defendant’s argument that ORS
136.432 abrogates traditional due process protections when
applied to ORS 813.160, or that it favors only the state.
Defendant’s challenge to the blood draw evidence is
based solely on the state’s lack of proof of compliance with
ORS 813.160(2). As defendant concedes, ORS 136.432 and
Warner require admission of blood draw evidence under
406 State v. Wilson
those circumstances. See Warner, 181 Or App at 635 (“[W]e
conclude that—despite the insufficient foundation in this
case to show compliance with ORS 813.160(2)—the blood
draw evidence is ‘otherwise admissible,’ and ORS 136.432
requires its admission.”). Accordingly, the trial court did not
err in denying defendant’s motion.
Reversed and remanded.
