Arguments for the state

8/3/2019 Arguments for the state

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IN THE SUPREME COURT OF THE STATE OF OREGON

_______________

STATE OF OREGON,

Plaintiff-Respondent,

Respondent on Review,

v.

JOSE L. NUNEZ CABANILLA, aka

Jose L. Cabanilla Nunez,

Defendant-Appellant,

Petitioner on Review.

Malheur County Circuit

Court No. 08071452C

CA A141868

SC S059289

_______________

BRIEF ON THE MERITS OF

RESPONDENT ON REVIEW, STATE OF OREGON

_______________

Review of the Decision of the Court of Appeals

on Appeal from a Judgment

of the Circuit Court for Malheur County

Honorable J. BURDETTE PRATT, Judge

_______________

Opinion Filed: February 23, 2011

Before: Haselton, P.J., Brewer, C.J., and Armstrong, J.

_______________

PETER GARTLAN #870467

Chief Defender

Office of Public Defense Services

ZACHARY L. MAZER #066670Deputy Public Defender

1175 Court St. NE

Salem, Oregon 97301

Telephone: (503) 378-3349

Email:

[email protected]

Attorneys for Petitioner on Review

JOHN R. KROGER #077207

Attorney General

MARY H. WILLIAMS #911241

Solicitor GeneralPAMELA J. WALSH #894034

Assistant Attorney General

1162 Court St. NE

Salem, Oregon 97301-4096

Telephone: (503) 378-4402

Email: [email protected]

Attorneys for Respondent on Review

10/11

October 11, 2011 03:37 PM


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TABLE OF CONTENTS

STATEMENT OF THE CASE ...................................................................... 1

Questions Presented and Proposed Rules of Law ................................ 1

Summary of Argument......................................................................... 2Factual and Procedural Background..................................................... 4

A. The Motion to Suppress ............................................................. 4

B. The Trial..................................................................................... 6

C. The Court of Appeals................................................................. 9

ARGUMENT.................................................................................................. 9

A. Statutory analysis confirms that the advisement of rights

and consequences is a simple procedural tool, and that

police are not required to ensure that individual arrestees

understand the advisement. ...................................................... 10

1. The text of the statute does not require officers to

ensure that arrestees understand the rights and

consequences related to a refusal................................... 10

2. Statutory context suggests a streamlined procedure

that was not intended to confer a legal right to the

advisement. .................................................................... 13

3. The legislative history of the implied consentstatutes argues against defendants interpretation. ........ 16

4. In the event that this court does not find the

legislative history compelling, it should consider

that the legislature would not have intended the

results that flow from defendants interpretation. ......... 21

B. The trial court did not err when it allowed evidence of

defendants refusal in the DUII trial. ....................................... 26

1. Suppression was not warranted, because thedeputy complied with the statutes................................ 26

2. Even if the deputy failed to comply with the

implied consent statutes, suppression was not the

appropriate remedy. ....................................................... 26

a. Evidence of the refusal was relevant................... 28

b. The refusal was otherwise admissible. ............ 29


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c. None of the other provisions of

ORS 136.432 require suppression..................... 34

C. If the trial court erred by admitting evidence of the

refusal, the error was harmless because of the other

evidence presented to the jury.................................................. 35

D. The trial court correctly denied defendants motion for a

judgment of acquittal on the violation of refusing a breath

test. ........................................................................................... 37

E. This court should not consider the unpreserved

constitutional arguments contained in the amicus brief

because the state had no opportunity to meet those

arguments. ................................................................................ 39

F. In any event, defendants constitutional rights were not

violated. .................................................................................... 42

1. The due process claims lack merit because

defendants trial was not fundamentally unfair. ............ 42

2. There was no violation of Article I, section 20. ............ 46

CONCLUSION............................................................................................. 48

APPENDIX

Oregon Revised Statutes............................................................... App-1

TABLE OF AUTHORITIES

Cases Cited

City of Salem v. Bruner,

299 Or 262, 702 P2d 70 (1985).......................................................... 41

Couch v. Rice,

23 Ohio App 2d 160, 261 NE2d 187 (1970) ...................................... 45

Davis v. OBrien,

320 Or 729, 891 P2d 1307 (1995)...................................................... 39

Doyle v. Ohio,

426 US 610, 96 S Ct 2240, 49 L Ed 2d 91 (1976) ....................... 43, 44

Farmers Insurance Company v. Mowry,

350 Or 686, ___ P3d ___ (September 9, 2011).................................. 17

Gryger v. Burke,

334 US 728, 68 S Ct 1256, 92 L Ed 2d 1683 (1948) ......................... 43


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Kim v. State Department of Licensing,

115 Wash App 1017, 2001 WL 1664980 (2001)............................... 25

New Jersey v. Marquez,

202 NJ 485, 998 A2d 421(2010)........................................................ 24

People v. Wegielnik,152 Ill 2d 418, 605 NE2d 487 (1992) ................................................ 45

Rodriguezv. State,

275 Ga 283,

cert den, 537 US 1046 (2002) ............................................................ 45

South Dakota v. Neville,

459 US 553, 103 S Ct 916, 74 L Ed 2d 748 (1983) ...............................

...............................................................................16, 20-21, 34, 42, 44

Spencer v. Texas,

385 US 554, 87 S Ct 648, 17 L Ed 2d 606 (1967) ............................. 43

State v. Bloom,

216 Or App 245, 172 P3d 663 (2007),

rev den, 344 Or 280 (2008) ................................................................ 35

State v. Carr,

319 Or 408, 877 P2d 1192 (1994)...................................................... 13

State v. Cervantes,

319 Or 121, 873 P2d 316 (1994) ........................................................ 37

State v. Clark,

291 Or 231, 630 P2d 810,

cert den, 454 US 1084 (1981) ............................................................ 46

State v. Cunningham,

320 Or 47, 880 P2d 431 (1994).......................................................... 37

State v. Davis,

336 Or 19, 77 P3d 1111 (2003).......................................................... 35

State v. Fish,

321 Or 48, 893 P2d 1023 (1995)........................................................ 15

State v. Fogle,

254 Or 268, 459 P2d 873 (1969) .................................................. 17, 23

State v. Gaines,

346 Or 160, 206 P3d 1042 (2009).......................................... 10, 12, 22

State v. Garcia,

756 NW2d 216 (Iowa 2009)............................................................... 45


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State v. Gulley,

324 Or 57, 921 P2d 396 (1996).......................................................... 22

State v. Lotches,

331 Or 455, 17 P3d 1045 (2000),

cert den, 534 US 833 (2001) .............................................................. 35

State v. Machuca,

347 Or 644, 227 P3d 729 (2010) .................................................. 18, 24

State v. Marquez,

202 NJ 485, 998 A2d 421 (2010)....................................................... 45

State v. Moylett,

313 Or 540, 836 P2d 1329 (1992)...................................................... 26

State v. Newton,

291 Or 788, 636 P2d 393 (1981), overruled in part on other grounds

byState v. Spencer,

305 Or 59, 750 P2d 147 (1988).......................................................... 17

State v. Probst,

339 Or 612, 124 P3d 1237 (2005)...................................................... 38

State v. Ruiz,

251 Or 193, 444 P2d 32 (1968).......................................................... 44

State v. Trenary,

316 Or 172, 850 P2d 356 (1993)........................................................ 26

State v. Vasquez-Rubio,

323 Or 275, 917 P2d 494 (1996) ........................................................ 22

State v. Walker,

350 Or 540, 258 P3d 1228 (2011)...................................................... 39

State v. Whitman County Dist. Court,

105 Wash 2d 278, 714 P2d 1183 (1986)............................................ 44


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Constitutional & Statutory Provisions

OEC 103(1)................................................................................................... 35

OEC 401........................................................................................................ 28

OEC 403........................................................................................................ 33

Or Const Art I, 20 ...................................................................... 4, 41, 46, 47

ORS 136.432..................................................... 2, 3, 26, 27, 28, 29, 32, 34, 35

ORS 153.008(1)(b) ....................................................................................... 37

ORS 174.010................................................................................................. 13

ORS 813.010........................................................................................... 28, 32

ORS 813.095................................................................................................. 38

ORS 813.095(1) ............................................................................................ 37ORS 813.100......................................................... 9, 11, 12, 13, 16, 30, 31, 38

ORS 813.100(1) ............................................................................................ 17

ORS 813.100(2) ............................................................................................ 17

ORS 813.100(2) ...................................................................................... 18, 19

ORS 813.130................................................. 12, 13, 14, 16, 18, 19, 30, 31, 38

ORS 813.130(2) ............................................................................................ 14

ORS 813.130(3) ............................................................................................ 14ORS 813.135........................................................................................... 15, 16

ORS 813.136........................................................................................... 15, 16

ORS 813.140................................................................................................. 14

ORS 813.140(2) ............................................................................................ 14

ORS 813.160(1) ............................................................................................ 31

ORS 813.310..................................................................................... 11, 26, 30

ORS 813.320........................................................................................... 30, 32ORS 813.320(1) ............................................................................................ 32

ORS 813.410................................................................................................. 30

Other Authorities

Senate Judiciary Committee Public Hearing, SB 203, March 28, 1985 ...... 19

Websters Third New Intl Dictionary 1160(unabridged ed 2002) ............. 12


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BRIEF ON THE MERITS OF

RESPONDENT ON REVIEW, STATE OF OREGON

_______________

STATEMENT OF THE CASE

Respondent State of Oregon has reframed the questions presented and

proposed rules of law, and presents its own summary of argument. The state

otherwise accepts defendants statement of the case as adequate for review,

with the additional facts stated in the summary and arguments below.

Questions Presented and Proposed Rules of Law

First Question: The implied consent statutes require arrestees to be

informed of rights and consequences before officers ask them to take a

breath test. Is the statutory requirement satisfied where officers inform

arrested persons of the rights and consequences by reading the form

developed by the Department of Transportation?

Proposed Rule: Yes. The implied consent statutes implement

simple, workable procedures to generate evidence of impaired driving. The

statutory advisement is a tool to facilitate the collection of that evidence

without resort to physical force. The statutes only require officers to read

the form developed by the Department of Transportation, and they do not

require officers to ensure that arrestees make a knowing and fully informed

decision regarding whether to submit to a breath test.


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Second Question: If an officer reads the statutory advisement of

rights and consequences from the form developed by the Department of

Transportation, but does not translate the advisement into the arrestees

primary language, must a trial courtsuppress evidence of the arrestees

refusal in a DUII trial?

Proposed Rule: No. ORS 136.432 precludes suppression because

(1) the implied consent statutes do not require courts to exclude evidence of

a refusal where an arrestee does not understand the advisement, (2) evidence

of a refusal is relevant as tending to show that the driver believed he or she

was under the influence of an intoxicant, and (3) a refusal is otherwise

admissible, since an arrestees understanding of the advisement is not a

predicate to a valid refusal and admitting evidence of a refusal is not unduly

prejudicial.

Summary of Argument

The implied consent statutes implement workable procedures to

collect evidence against impaired drivers. The statutory advisement of rights

and consequences is a mechanism designed to compel as many drivers as

possible to peacefully submit to chemical testing. The statutes create a

simple process, and officers comply with that process if they read the

advisement form developed by the Department of Transportation. The

statutes do not require police to ensure that arrestees understand the


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advisement of rights and consequences by determining the arrestees

primary language and then translating the form into that language.

Even if, as defendant contends, there is an additional requirement for

officers to translate the form, an officers failure to do so does not mandate

the remedy that defendant seeks. The legislature has prohibited trial courts

from excluding evidence based on this type of statutory violation.

ORS 136.432. The implied consent statutes do not require the exclusion of

evidence, nor do they require a foundation before a refusal can be said to

exist. A refusal is a matter of fact, not a creature of law, and it can exist

regardless of the statutory advisement. Evidence of a refusal is relevant

evidence in a trial for driving under the influence of intoxicants, because it

shows consciousness of guilt. And such evidence is not unduly prejudicial

where, as here, there was abundant evidence to show that defendant was

driving under the influence of intoxicants, including other evidence

demonstrating a guilty conscience. Suppression was not warranted.

The states evidence sufficed to show that defendant was guilty of the

violation of refusing a breath test, and the trial court was not obliged to

acquit defendant. The statute defining the violation did not require the state

to prove that defendant understood the statutory advisement of rights and

consequences. The state proved the elements necessary to support the

violation.


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This court should not address the unpreserved constitutional

arguments raised for the first time in the amicus brief. Had defendant raised

those issues at trial, the state could have developed evidence to meet the

constitutional claims. It has been denied the opportunity to do so.

Moreover, neither the trial court nor the Court of Appeals had any occasion

to address the constitutional arguments amicus now raises. The record in

this case is inadequate for this court to consider those arguments.

To any extent this court examines the constitutional arguments raised

by amicus, it will find that they are without merit. The admission of

evidence of the refusal in this case did not render defendants trial

fundamentally unfair, and it did not, therefore, violate due process

principles. There was no violation of defendants rights under Article I,

section 20, because the pertinent implied consent laws do not confer a

privilege or immunity. Furthermore, there was no evidence of a policy that

violated defendants right to equal protection under that constitutional

provision. This case does not involve a violation of defendants

constitutional rights.

Factual and Procedural Background

A. The Motion to Suppress

The state charged defendant with driving under the influence of an

intoxicant (DUII), and with traffic violations for refusing a breath test and


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careless driving with an accident. (ER 1).1

Defendant filed a motion to

suppress evidence. (ER 7-9). Defendant argued that police violated the

implied consent statutes by failing to inform him of his rights and

consequences in his native language[.] Tr 32.

At the suppression hearing, Deputy Gregory Romans testified that he

was dispatched to scene of a crash on June 28, 2008, at about 9:10 p.m. Tr

4. When he arrived, he saw a car that had flipped-over in an onion field. Tr

8. Defendant, who smelled of alcohol, was the sole occupant of the car and

he was buckled into the passengers side[.] Tr 4-5, 9. Deputy Romans

asked defendant for his driver license.2

Tr 4. Defendant claimed that the

driver of the car had been another man, Juan Tr 4-5.

Deputy Romans knew there was a language barrier when spoke with

defendant, and he believed that defendant primarily spoke Spanish. Tr 9-10.

The deputy spoke to defendant mainly in English, but he also used hand

gestures and a few Spanish words. Tr 5-6, 21-23, 25. Defendant, who knew

basic English, responded to the deputy in Spanish with a few words in

1

ER refers to the excerpt of record attached to the appellantsbrief filed in the Court of Appeals.

2When he testified, the deputy was not sure whether defendant

gave him the license. Tr 4. The citation confirmed that defendant

possessed, and had apparently produced, an Oregon driver license. (App Br

ER 1).


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English. Tr 23-24, 29. Defendant indicated that he had consumed two or

three cervazas. Tr 23. The deputy took defendant to the road, explained

and demonstrated the field sobriety tests, and defendant attempted to

perform the tests. Tr 6. After the tests, Deputy Romans arrested defendant

and transported him to jail. Tr 6-7.

Deputy Romans asked defendant questions, in English, from the

Oregon State Police Alcohol Influence Report. Tr 7. Defendant was able to

answer those questions. Tr 7. The deputy read him the DMV implied

consent form, in English. Tr 7-8, 26. The deputy asked defendant to take a

breath test, and defendant asked, in English, What would you do? Tr 8,

26-27. After Deputy Romans said that he could not tell defendant what to

do, defendant shook his head andsaid no, indicating that he did not want

to take a breath test. Tr 8, 27.

The trial court denied the motion to suppress. The court was not able

to find that defendant knew and completely understood all the rights and

consequences[.] Tr 35. On the other hand, the court found that defendant

understood that he was being asked whether he wanted to take a breath test.

Tr 35.

B. The Trial

During the trial on the charge of DUII, the jury heard that defendant

and a co-worker, David drank some beer on the evening of June 28,


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2008. Tr 136-37. When they left their location, defendant got into his own

car, alone. Tr 139. A witness saw defendants car turn onto a road,

traveling at high-speed. Tr 63. She saw the car hit the side of the road, fly

into the air and travel a few hundred feet, roll and then land in an onion

field. Tr 63-64. She watched the car until police arrived, and observed that

no one left the car. Tr 64.

Officer Randy Leavitt and Deputy Romans arrived at the scene and

found the car in the field. Tr 82, 89. It had crossed onto the wrong side of

the road, returned to the correct side, and then left the road and landed in the

field. Tr 108. The car was registered to defendant and his wife, and

defendant was the only occupant. Tr 83, 89-90. He was in the passenger

seat, wearing a seatbelt. Tr 83. Defendant was bleeding, and there was

blood on both the drivers side and the passenger side of the car. Tr 91-92,

118. Defendant smelled of alcohol, and had bloodshot, glassy eyes, with

droopy eyelids. Tr 83-84, 90.

Defendant told the officers that someone else had been driving. Tr 84,

90. Deputy Romans looked in the muddy field for footprints, but he did not

find any. Tr 90-91. When Deputy Romans pointed-out to defendant that

there was blood on the drivers side of the car, defendant pointed to the

passenger side of the car and indicated that there was blood there too. Tr 92.

Deputy Romans noted that there was a language barrier; the deputy could


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only speak a little Spanish, and he used some Spanish and gestures when

communicating with defendant. Tr 111. Defendant appeared to understand

the instructions the deputy gave him for the field sobriety tests. Tr 85-86.

After the investigation and tests, Deputy Romans concluded that defendant

was impaired and arrested him. Tr 107-08.

At the police station, Deputy Romans took defendant into a room with

the intoxilyzer machine. Tr 124. He read the Department of Motor Vehicles

implied consent advisement form to defendant, word for word in English.

Tr 108-09, 121. The jury heard the entire form, as the deputy had read it to

defendant. Tr 129-32. The deputy asked defendant whether he would take a

breath test, and defendant asked the deputy what he would do. Tr 124, 132.

Deputy Romans replied that the choice belonged to defendant. Tr 124, 134.

The deputy believed that defendant understood when he asked defendant to

submit to the breath test. Tr 133. Defendant paused for a moment and then

either responded verbally or shook his head no. Tr 134. Defendant did

not take a breath test. Tr 109. After hearing the evidence, the jury found

defendant guilty of DUII.

The trial court considered the same evidence in determining whether

defendant was guilty of the violations. The judge stated theres no question

in my mind that he was driving the vehicle and found defendant guilty of

careless driving. Tr 207. The judge found that defendant knew he was


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being asked to take a breath test, but expressed concern that defendant did

not understand the advisement that the deputy read to defendant. Tr 205.

The court nevertheless found defendant guilty of the violation of refusal.

C. The Court of Appeals

Defendant appealed his conviction for DUII, and for the refusal

violation, to the Court of Appeals. He argued that the trial court erred by

denying his motion to suppress evidence of the refusal in the trial on the

DUII charge, and that the trial court should have granted a motion for a

judgment of acquittal on the violation for refusing a breath test. Defendant

argued that the statutory term inform required the deputy to read the

Department of Transportation advisement form to defendant in a language

that defendant could understand. (App Br 9-26).3

The Court of Appeals

affirmed without opinion.

ARGUMENT

When defendants arguments are distilled, they present a narrow issue

of statutory interpretation. The fundamental question here is: What does

ORS 813.100 mean by requiring arrestees to be informed of rights and

consequences before police ask them to submit to a breath test? When this

court examines the statutory text, context, and legislative history, and the

3App Br refers to the appellants brief filed by defendant in the

Court of Appeals; Pet Br refers to the brief defendant filed in this court.


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relevant maxims of statutory construction, it must conclude that the

legislature intended to implement a straightforward procedure that allowed

police to simply read the advisement form developed by the Department of

Transportation. SeeState v. Gaines, 346 Or 160, 171-72, 206 P3d 1042

(2009) (To ascertain the meaning of a statute, the court examines text,

context, and any legislative history offered by the parties; if the meaning

remains unclear, the court may resort to general maxims of statutory

construction).

A. Statutory analysis confirms that the advisement of rights and

consequences is a simple procedural tool, and that police are not

required to ensure that individual arrestees understand the

advisement.

The required statutory analysis shows that the legislature did not

intend the complexity that flows from defendants construction of the

implied consent statutes. The text and context of the statutes supply a useful

framework for the analysis, but do not resolve the issues before this court.

The legislative history best informs the analysis, and the courts inquiry can

end there. To the extent that this court reaches the last part of the analysis,

the state also addresses relevant maxims of construction below.

1. The text of the statute does not require officers to ensure

that arrestees understand the rights and consequences

related to a refusal.

The text of the implied consent statutes contains no requirement that

arrestees must understand the rights and consequences form before they are


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asked to take a breath test. The implied consent statutes provide that a

refusal occurs where a person refuses to submit to a chemical test under

ORS 813.100. ORS 813.310.4

For purposes of a refusal, then, the issue

becomes what ORS 813.100 requires when it states that the arrestee must be

informed of rights and consequences. In other words, does the statute

require an arrestee to know and understand the rights and consequences that

attend a refusal before a refusal can occur?

ORS 813.100 is part of Oregons implied consent laws, which state

that drivers in Oregon have impliedly consented to submit to chemical

testing for alcohol, including breath testing. ORS 813.100 provides:

(1) Any person who operates a motor vehicle upon

premises open to the public or the highways of this state shall

be deemed to have given consent * * * to a chemical test of

the persons breath * * * for the purpose of determining the

alcohol content of the persons blood if the person is arrestedfor driving a motor vehicle while under the influence of

intoxicants in violation of ORS 813.010 * * *. A test shall be

administered upon the request of a police officer having

reasonable grounds to believe the person arrested to have been

driving under the influence of intoxicants in violation of

ORS 813.010 * * *. Before the test is administered the person

requested to take the test shall be informedof the

consequences and rights as described under ORS 813.130.

(2) No chemical test of the persons breath * * * shall be

given, under subsection (1) of this section, to a person under

arrest for driving a motor vehicle while under the influence of

4The full text of the relevant statutes is contained in the

appendix.


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intoxicants * * * if the person refuses the request of a police

officer to submit to a chemical test after the person has been

informedof consequences and rights as described under

ORS 813.130.

(Emphasis added).

The legislature did not define the relevant term, and so the analysis

starts with dictionary definition of the root word, inform. Gaines, 346 Or

at 175 n 13. One definition of the word inform is to lay information.

Websters Third New Intl Dictionary 1160(unabridged ed 2002). To lay

information is to simply put [the information] forward. Websters Third

New Intl Dictionary 1281(unabridged ed 2002). The dictionary definition

of inform contains a cross-reference to the word tell. Websters Third

New Intl Dictionary 1160(unabridged ed 2002). Tell is defined as to

mention one by one or piece by piece, to relate in detail, or to say,

utter. Websters Third New Intl Dictionary 2351 (unabridged ed 2002).

Thus, this court should construe the statute as requiring an officer to tell an

arrestee of the rights and consequences related to a refusal. That

requirement is satisfied if the officer says, or utters, the words contained on

the rights and consequences advisement form specified in ORS 813.100 and

ORS 813.130.

The absence of statutory text is, perhaps, more instructive in this case.

Defendant contends that, by requiring arrestees to be informed, the statute


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requires officers to impart the knowledge necessary to the arrestees

understanding of the rights and consequences. (Pet Br 13). But the

legislature did not include any text, in the above statute or any of the

associated statutes, that an arrestee must understand or know the rights

and consequences before being asked to submit to a breath test. Because

this court cannot insert what the legislature has chosen to omit, it should

refrain from imposing the requirement defendant suggests. ORS 174.010

(courts are not to insert what has been omitted, or to omit what has been

inserted).

2. Statutory context suggests a streamlined procedure that was

not intended to confer a legal right to the advisement.

Other relevant implied consent statutes show that a desire for the

simple administration of the rights and consequences advisement took

priority over any concern that arrestees must understand their rights.

Examining those statutes provides context that clarifies the meaning of the

statutes at issue here. See State v. Carr, 319 Or 408, 411-12, 877 P2d 1192

(1994) (Context includes other related statutes.). That is especially true

because the statutes at issue in this case expressly refer to other implied

consent statutes. For example, the above sections of ORS 813.100 refer to

the rights and consequences as described under ORS 813.130. That


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statute describes the rights and consequences that must be given to an

arrestee. ORS 813.130(2), (3). ORS 813.130 also provides:

(1) The information about rights and consequences shall

be substantially in the form prepared by the Department ofTransportation. The department may establish any form it

determines appropriate and convenient.

(Emphasis added). Thus, the legislature delegated the form of the

advisement to the Department of Transportation, and it authorized the

department to use the form it found convenient. That delegation suggests

that concerns of administrative convenience prevailed over concerns about

whether the form could be understood by each individual arrestee. If an

understandable advisement was a priority, the legislature would have

required the department to develop a form that was conducive to

understanding by an arrestee. But it did not. It did not, for example, require

easy-to-understand terminology. Nor did the legislature require the

department to translate the rights and consequences into various languages,

as it could have done.

Another provision of the implied consent laws, ORS 813.140,

suggests the legislature was primarily concerned with collecting evidence of

intoxicated driving, pursuant to the implied consent of the driver, and had

little concern about whether that person knew the rights and consequences

that relate to chemical testing. ORS 813.140(2) allows forced blood testing


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of an unconscious or incapacitated person. Thus, the statute allows police to

use an invasive procedure to collect inculpatory evidence, with no

requirement that the person is even aware of the option to refuse. In other

words, consent to testing is implied prior to any request to submit to testing,

and the legislature recognized no need for the arrestee to be advised of

attendant rights and consequences before the collection of evidence that

could be used against the arrestee. The same rationale applies to the statutes

involved in this case. The moving force behind the statutes is the collection

of inculpatory evidence, by means of a breath test or a refusal, and that holds

true regardless of whether an arrestee understands the rights and

consequences that relate to the collection of that evidence.

Contrary to defendants argument, ORS 813.135 and ORS 813.136,

do not provide helpful context. (App Br 16). Those statutes address field

sobriety tests. Despite similar text, the information required by those

statutes does not truly compare to the information required by the statutes at

issue here. In ORS 813.135 and ORS 813.136, the legislature created a

situation that could compel testimonial evidence. Those statutes could force

a defendant to chose between two possible forms of compelled testimonial

evidencefield sobriety tests or a refusal. Where both choices might

require self-incrimination, a defendant must be fully informed to avoid

unlawful compulsion. State v. Fish, 321 Or 48, 54-56, 893 P2d 1023 (1995)


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The statutes at issue here do not compel such a choice, because they allow a

defendant to choose a non-testimonial blood alcohol test. 321 Or at 62

(discussing South Dakota v. Neville, 459 US 553, 103 S Ct 916, 74 L Ed 2d

748 (1983)). The requirement that an arrestee be informed for purposes of

blood alcohol testing does not square with the requirement that an arrestee

be informed before officials compel testimonial evidence. Moreover, the

statutes that address field sobriety tests do not contain a reference to a

specific form, developed as an agency might find convenient, as do

ORS 813.100 and ORS 813.130. For those reasons, this court should reject

defendants offer of ORS 813.135 and ORS 813.136 as contextual authority.

3. The legislative history of the implied consent statutes argues

against defendants interpretation.

The history behind the implied consent statutes confirms that the

primary concern of the legislature was to ensure public safety and enforce

laws against intoxicated drivers, while avoiding physical confrontations

between police and arrestees. The legislature favored a workable system

geared toward achieving those overall objectives. Implementing that system

took priority over concerns regarding whether individual arrestees were

aware of rights related to chemical testing.


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This courts examination of the legislative history has caused it to

reach a similar conclusion.5

It has observed that the implied consent

warnings were not intended to reinstate a right to choice, let alone a

voluntary and informed choice, but rather to nonforcibly enforce the drivers

previous implied consent. State v. Newton, 291 Or 788, 793, 636 P2d 393

(1981), overruled in part on other grounds byState v. Spencer, 305 Or 59,

750 P2d 147 (1988).This court noted that legislative history confirms our

earlier decision in State v. Fogle, 254 Or 268, 459 P2d 873 (1969), that the

option of refusal under the statute does not imply a requirement of

voluntary submission. Id. at 798. Indeed, [t]he very concept of implied

consent * * * was intended to eliminate the right of choice and to recognize

actual choice only in the sense of a forbearance of physical resistance. Id.

at 799 (emphasis added).

In Spencer, this court specifically addressed the legislative history of

the statutes central to this case; ORS 813.100(1) and (2), in conjunction with

5This court has issued many opinions analyzing the legislative

history of the implied consent statutes. Those opinions, and their

interpretations of the statutes, are no longer considered part of the statutorytext. Farmers Insurance Company v. Mowry, 350 Or 686, ___ P3d ___

(September 9, 2011) (slip op at 10-11). Nevertheless, because the opinions

contain detailed discussions of the legislative intent behind the implied

consent statutes, they are discussed in this legislative history analysis. The

state also offers those cases for their value as stare decisis. Id. (slip op at

13).


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ORS 813.130. The court observed that statutory references to refusals do

not evince a legislative concern that the driver make a voluntary and fully

informed decision whether to submit to the test. 305 Or at 71. Instead,

[t]he history and development of the implied consent law * * * suggested

that the advice to be given an arrestee was intended to provide an additional

incentive, short of physical compulsion, to induce submission. Id.

(footnotes omitted). This court recently confirmed that view of the relevant

legislative history. See State v. Machuca, 347 Or 644, 658, 227 P3d 729

(2010) (quoting the legislative history, as described in Spencer, and

concluding that, by imposing a coercive influence on arrestees, the advice of

rights and consequences operated exactly as the legislature intended). The

history shows that the legislature did not intend to give arrestees a legal right

to the incentive of the rights and consequences advisement. By requiring

the advisement, the legislature simply provided a tool intended to help avoid

physical confrontations.

This court should not accept defendants proposed construction,

because it runs contrary to the legislative intent to avoid the use of physical

force. For example, ORS 813.100(2) states that [n]o chemical test of the

persons breath * * * shall be given * * * if a person refuses to submit to a

chemical test after the person has been informed of the consequences and

rights as described under ORS 813.130. If, as defendant contends,


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informed means that a person must understand the rights, and if it is a

predicate to a valid refusal, then there is no refusal where a person does not

understand the advisement. ORS 813.100(2) says that police cannot

administer a breath if there has been a refusal. So, if there has notbeen a

refusal, then police would be free to compel testing, and that could involve

physical force. That is not what the legislature intended by implementing

this statutory scheme.

Legislative history also indicates that the advisement was intended to

be simple and convenient, rather than a means of ensuring that arrestees

were fully knowledgeable. As defendant observes, the original implied

consent laws did not specify the form for the advisement of rights and

consequences. (Pet Br 19). ORS 813.130, the statute that allowed the

Department of Transportation to develop the form, was enacted in 1985.

The Senate Judiciary Committee discussed the rights and consequences form

on March 28, 1985. Senate Judiciary Committee Public Hearing, SB 203,

March 28, 1985, Tape 69 Side A. Senator Simmons stated that the

legislature needed to come up a simplified procedure to facilitate

enforcing the impaired driving laws and getting the slaughter off the

highways. Id. Side B at 435. He expressed concern with the amount of

material that officers were required to recite to properly advise arrestees of

their rights, and said he sought to learn what could be done to simplify it.


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Id. The Senator said, I think there is a valid reason for having a

standardized form[.] Id. Chairman William Frye agreed that the

information should involve an easy process, but he did not believe that the

form needed to be contained in the statutes.6Id. Tape 70 Side B at 23.

In sum, the legislature did not intend the implied consent laws to give

arrested drivers a legal right to an understandable advisement. To the

contrary those laws removed voluntary choices from a driver that the

driver might otherwise have had.7

At the time these statutes were adopted,

states could legitimately compel the suspect, against his will, to accede to

the [breath] test. South Dakota v. Neville, 459 US 553, 563, 103 S Ct 916,

74 L Ed 2d 748 (1983). The legislature implemented the implied consent

6Defendant states that the Chairman observed that the

legislature was trying to help people get through the implied consent processwithout legal assistance. (Pet Br 19). But the Chairman was not addressing

the implied consent laws he instead made a general comment about the

detail contained in Oregon statutes as a whole. The Chairman was

responding to Senator Cohens comment that the statutes these days were

filled with prescribed forms[.] Id. Tape 69 Side B. The Chairman stated,

I share your concern and my guess is that the legislature is trying the very

hardest it could possibly try to help people get along in life without

lawyers. Id. at 435. His comment is not evidence that the implied consent

advisement was intended to give detailed legal information to arrestees.

7Defendant argues that, if a defendant does not understand the

advisement, then the legislative purpose of compelling submission is not

served. (Pet Br 15). But, as indicated by this discussion, that was not the

sole legislative purpose. The legislature also intended to facilitate the

gathering of evidence to convict impaired drivers. As long as either the

breath test or the refusal is admissible, that purpose is served.


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advisement as a procedural device, to help avoid physical confrontations in

collecting evidence, by using verbal persuasion to facilitate breath testing.

Spencer, 305 Or 71. See, e.g., Neville, 459 US at 564 n 15 (a comparable

advisement was merely a procedure attendant to arrest and custody, similar

to a police request to submit to fingerprinting or photography.). When the

legislative history is considered in light of the statutory text that allows the

Department of Transportation to develop any form of advisement it deems

convenient, it becomes apparent that the legislature chose to emphasize

administrative ease. The advisement is a matter of legislative grace,

intended to streamline procedures, promote testing and gather evidence.

See, e.g.,Neville, 459 US at 565 (noting that South Dakotas statutory right

to refuse testing is simply a matter of grace bestowed by the South Dakota

legislature.). The legislature permitted the development of a single form, in

a single language, to serve as a persuasive tool in most instances

encountered by police. It intended nothing more.

4. In the event that this court does not find the legislative

history compelling, it should consider that the legislature

would not have intended the results that flow from

defendants interpretation.

Based on the legislative history described above, this court should

hold that the implied consent statutes do not require officers to translate the

advisement. But if any doubt remains, relevant statutory maxims resolve the


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matter in the states favor. SeeGaines, 346 Or at 172 (If the legislatures

intent remains unclear after examining test, context, and legislative history,

the court may resort to general maxims of statutory construction to aid in

resolving the remaining uncertainty.). The impact of defendants

construction in this case would be state-wide, and it would create delays that

impact the evidence, significant governmental costs, and a great deal of

administrative complexity. Thus, it is appropriate to consider the maxim

that directs the court to consider what the legislature would have done, had

that body specifically addressed the issue[s] at hand. State v. Gulley, 324

Or 57, 66, 921 P2d 396 (1996).8

The legislative purpose of promoting safe roadways and

administrative convenience is undermined by defendants construction of the

statute. Requiring police to ensure that arrestees understand the advisement

creates a series of problems that defy resolution. At the outset, defendants

interpretation begs the question of how a statutory requirement that arrestees

8

For reasons that become apparent from the discussion here, theconsequences of defendants construction defeat some of the basic tenets of

the implied consent statutes, such as the implementation of a workable

system of enforcement. Because of the consequences that flow from

defendants construction, considering what the legislature would have done

also invokes the absurd-result maxim. State v. Vasquez-Rubio, 323 Or 275,

282-83, 917 P2d 494 (1996).


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must understand the advisement would apply to intoxicated persons. As this

court observed:

[T]he legislature could hardly have contemplated that it

was necessary that there be a completely knowing andunderstanding submission. If this were to be the case, the only

people who would be tested would be those who were not

sufficiently intoxicated to interfere with their mental process.

Fogle, 254 Or at 270. Nor would defendants alternative argument resolve

that problem. (Pet Br 16). If this court imposed a requirement that the

advisement must be read in a way that the arrestee can understand, the

officer would need to assess the persons level of intoxication, linguistic

abilities, and perhaps even his underlying intellectual ability, to determine

whether he was reading the rights in a manner that the person could

understand.9

And when an officer is dealing with an intoxicated person

speaking another language, even the task of determining what language the

arrestee could understand may pose an insurmountable problem. At best,

such a scenario might require a consumption of time that, for the reasons

explained below, cannot be spared in this type of case.

9In any event, that alternative interpretation is inconsistent with

the remaining part of defendants argument that the statutory text requires

imparting knowledge to the listener. To be informed either requires

relaying the advisement so that it communicates knowledge to the arrestee,

or it does not. The statute contains neither gradations nor exceptions.


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Requiring that every arrestee must understand the rights and

consequences advisement would require translation of the advisement into

numerous languages. See, e.g.,New Jersey v. Marquez, 202 NJ 485, 528,

998 A2d 421(2010) (LaVecchia, J., dissenting in part and concurring in

judgment) (in New Jersey, eighty-one different languages were spoken in

our courts). And if the statute requires an arrestee to understand the

advisement, the task would not end with languages. The advisement would

need to be translated into the different dialects contained within each

language. A few languages could be translated in written form, but it is

unknown how an arresting officer might accurately convey that information

in the event that the (presumably intoxicated) arrestee is incapable of reading

it. Some oral linguistic translation may be readily available, but finding a

translator for more obscure languages or dialects might take considerable

time. That loss of time will conflict with the exigency created by blood

alcohol dissipation. Machuca, 347 Or at 657. It is an inescapable fact

that, in every such case, evidence is disappearing and minutes count. Id.

The effect of imposing the requirement urged by defendant would be to

delay testing for those drivers who do not speak English, and thus give them

an advantage over those who do speak English. The legislature would not

have intended that result had it considered the matter.


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Moreover, translating the advisement can lead to numerous problems

that interfere with the quick and simple administrative process anticipated by

the legislature. How an officer would arrange to adequately inform an

interpreter over the telephone of the precise text of the advisement is

unknown, and how an interpreter might translate that text is also unknown.

For example, in Kim v. State Department of Licensing, 115 Wash App 1017,

2001 WL 1664980 (2001), the Washington courts considered a claim by the

defendant that the interpreter on the telephone language-line had

misinformed him of the advisement. Thus, in DUII or refusal cases

involving arrestees who did not speak English, either the officer (who

presumably does not understand the foreign language) or the courts would

need to assess whether an oral translation accurately relayed the advisement

in a fashion that was understandable to, or could be understood by, the

arrestee.

Requiring police to translate the advisement, or to ensure that

arrestees understand it, creates an extraordinarily complex and unworkable

process. It presents no logical solution to the problem of the intoxicated

arrestee. These considerations would have precluded the legislature from

adopting defendants construction. This court should adopt the construction

that simply requires officers to read the advisement form developed by the

Department of Transportation, as the deputy did in this case.


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B. The trial court did not err when it allowed evidence of defendants

refusal in the DUII trial.

1. Suppression was not warranted, because the deputy

complied with the statutes.

The trial court did not err by admitting evidence of defendants

refusal, because Deputy Romans complied with the implied consent statutes.

He informed defendant of the rights and consequences by telling defendant

the advisement, in the form that was developed by the Department of

Transportation. That is all that the statutes required, and ORS 813.310

expressly allowed evidence of the refusal.

2. Even if the deputy failed to comply with the implied consent

statutes, suppression was not the appropriate remedy.

This court should reject defendants argument that suppression is

required if the deputy failed to inform him as required by the implied

consent statutes, because the legal authority he cites for that argument has

been supplanted by statute. This court sometimes held, prior to the 1997

adoption of ORS 136.432, that evidence should be suppressed if it was

obtained by means that did not comply with the statutes related to DUII.

See, e.g., State v. Moylett, 313 Or 540, 836 P2d 1329 (1992).10

Defendant

10Not all of the cases decided prior to 1997 required suppression.

For example, this court held that suppression was not required, despite a

violation of the law, in State v. Trenary, 316 Or 172, 176, 850 P2d 356

(1993) (Violation of a law by law enforcement does not necessarily require

suppression.).


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relies on cases that precede implementation of ORS 136.432 to support his

argument that the trial court should have suppressed the evidence in this

case. (App Br 21-31). They no longer control the question of whether

evidence obtained in violation of the implied consent statutes must be

suppressed.11

ORS 136.432 now governs the exclusion of evidence in instances of

statutory violations. It provides:

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 of the evidence is required by:

(1) The United States Constitution or the Oregon

Constitution;

(2) The rules of evidence governing privileges and

admission of hearsay; or

(3) The rights of the press.

Defendant argues that evidence of his refusal was not admissible

under ORS 136.432 because it was not relevant or otherwise admissible.

11Defendant argues that the cases remain viable because the

legislature did not respond to those cases with new legislation. (App Br 25).

He is mistaken. First, the legislature dideffectively abrogate those cases,

insofar as they required suppression, by enacting ORS 136.432. Second,

legislative silence does not constitute acquiescence in this courts opinions.

Mowry, 350 Or at ___ (slip op at 11-12).


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(Pet Br 32-33). The contrary is true. The evidence was both relevant and

admissible, and ORS 136.432 precluded the trial court from excluding it.

a. Evidence of the refusal was relevant.

Evidence of the arrestees refusal to submit to a breath test is relevant

under OEC 401, even when an arrestee does not understand the rights and

consequences advisement. OEC 401 states: Relevant evidence means

evidence having any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less

probable than it would be without the evidence. Applying that definition to

a DUII action, relevant evidence would be evidence having any tendency to

prove that a defendant was driving a vehicle under the influence of an

intoxicant. ORS 813.010. Regardless of whether a driver understands the

rights and consequences advisement, a refusal to take a breath test is still

relevant. It suggests an effort by a driver to avoid revealing the extent of his

or her alcohol consumption, and it indicates the drivers guilty conscience.12

That evidence tends to show that the person drove under the influence of

alcohol, and it is relevant under OEC 401.

12Defendant repeatedly characterizes a refusal as an admission

of guilt. (Pet Br 11, 26, 37). But a refusal alone, while it raises certain

inferences, does not carry the force of an admission by the arrestee that he or

she was driving under the influence of intoxicants. The arrestee could have

other reasons for refusing to submit to testing, such as a feeling of illness or

simply a desire to not cooperate with police or government testing.


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The relevance of such evidence is amply demonstrated by the facts in

this case. Defendant smelled of alcohol at the scene of the crash, displayed

signs of intoxication, and engaged in a ruse to avoid revealing that he was

the driver. After the deputy read the advisement and asked defendant to take

the test, defendant thought for a few minutes, and then asked the deputy,

What would you do? Tr 8, 26-27. As the trial court found, defendant

seemed to understand that he was being asked whether he refused

whether he you know, he should blow into the intoxilyzer or not. Tr 35.

Thus, regardless of whether he understood the advisement, defendant

nevertheless understood that he was being asked to submit to a breath test

that would reveal his alcohol consumption. Under these circumstances,

defendants refusal tended to show that he did not want to take a breath test

because it would help to establish that he was driving while intoxicated.

Defendants refusal was certainly relevant.

b. The refusal was otherwise admissible.

Evidence of therefusal was otherwise admissible under

ORS 136.432. There was no legitimate basis for finding evidence of the

refusal to be inadmissible, especially in light of the facts in this case. Thus,

the statute did not permit the trial court to exclude that evidence.

The implied consent statutes did not bar the admission of the refusal.

As defendant concedes, the refusal was [not] obtained in violation of a


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statutory provision that makes it inadmissible. (App Br 33; internal

quotations omitted). Defendants concession is correct. None of the

relevant implied consent statutes requires suppression as a remedy for a

failure to comply with the statutory advisement. See, e.g., Spencer, 305 Or

at 72 (declining to find that ORS 813.100 and ORS 813.130 afford an

arrested driver an additional, though unexpressed, right with an additional,

unexpressed penalty for violation of that right.).13

The content of the

pertinent statutes, including those cited by defendant to support his argument

for suppression, illustrate that point.

ORS 813.310, the statute that allows evidence of refusals, refers to

evidence against a person who refuses to submit to a chemical test under

ORS 813.100. ORS 813.100, in turn, states that chemical testing shall not

take place if the person refuses. In other words, ORS 813.100 proscribes

forced testing and it requires the advisement to help avoid physical force.

Neither of those statutes requires suppression, nor do they require the

advisement as a predicate to the admissibility of evidence of a refusal.

Similarly, ORS 813.320 does not bar the admission of evidence as defendant

contends. (Pet Br 27-31). Nothing in the text of ORS 813.320 requires

13The remedy the statutes do provide is that, if an arrested driver

is not adequately advised, a refusal to submit to a breath test cannot serve as

a basis for license suspension. ORS 813.410. Id.


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suppression if an arrestee is not advised of rights and consequences. Thus,

none of the relevant implied consent statutes requires suppression of

evidence obtained in violation of the statutory provisions.

Nor do the implied consent statutes impose foundational requirements

before there can be a valid refusal. (Pet Br 26, 33). Nothing in either

ORS 813.100 or ORS 813.130 the statutes that defendant claims were

violated in this case that uses traditional foundational language, such as

to be valid.14

Nor does ORS 813.100, which states that a refusal comes

after the advisement, mean that no refusal exists unless the arrestee is first

informed of the advisement. (Pet Br 12, 14). In Spencer, this court

reviewed the history of the implied consent statutes, which formerly had

required the advisement to be read only after an arrestee had refused to

submit to testing. 305 Or at 67. The court observed that the legislature had

since changed the order of events by requiring the advisement to be read

before asking the arrestee to submit to testing. The court noted, In 1985,

the legislature amended ORS 813.100 to provide that the advice be given

before the breath test is administered. * * * The legislative history indicates

that no substantive change was intended. Id. at 72 n 3 (emphasis added).

14Compare ORS 813.160(1), which requires those conducting

chemical analyses to possess certain credentials before a chemical test is

valid.


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Thus, the legislature did not require strict compliance with the administrative

aspects of the statutes as a predicate to a valid refusal. The statutes prescribe

the advisement, but they do not create a foundational requirement as

defendant contends.

ORS 813.320(1) does not mandate suppression. It provides that

courts shall not construe the implied consent law to limit the introduction of

otherwise competent, relevant evidence in any civil action, suit or

proceedings or in any criminal action other than a violation of ORS 813.010

[driving under the influence of intoxicants] * * *. (Emphasis added). To

support his argument that ORS 813.320 requires suppression, defendant cites

cases and legislative history that precede the enactment of ORS 136.432.

(Pet Br 27-31). For the reasons already explained, the cases cited by

defendant are not controlling. Because the legislative history defendant cites

predates ORS 136.432, it does not address how the legislature viewed the

admissibility of evidence in a DUII given the current state of the law. And a

review of ORS 813.320(1) reveals that there is no foundational requirement

for a refusal and no requirement of suppression in that provision. The

statute serves to limit the authority of the courts, not to mandate an

evidentiary foundation or authorize suppression; it contains no to be valid

language and no express requirement for suppression.


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Finally, evidence of the refusal was admissible under OEC 403.15

Defendant does not explain why he asserts that the evidence violated that

provision, except to say that there was no valid refusal absent the statutory

advisement. (Pet Br 33). Presumably, he argues that evidence of the refusal

was unduly prejudicial, or could confuse or mislead the jury.

As an initial matter, the refusal did, as a matter of fact, take place.

The trial court found that defendant knew that the deputy was asking him to

submit to a breath test and defendant, after asking the deputy what he would

do, did not submit. Tr 205. That is a refusal, regardless of the

advisements. It indicated a guilty conscience and it did, therefore, have

probative value.

And, as discussed above, the statutes do not render a refusal invalid

for failing to provide the advisement. Thus, the jury would not have been

confused or mislead by evidence of a refusal that did not technically exist as

a matter of law. And, in this case, evidence of the refusal itself was not

unduly prejudicial. Evidence of a refusal is not tantamount to an admission

of guilt it simply raises an inference that the driver is trying to conceal his

15The rule states: Although relevant, evidence may be excluded

if its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of issues, or misleading the jury, or by considerations

of undue delay or needless presentation of cumulative evidence.


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conduct. See Neville, 459 US at 564 ([T]he inference of intoxication

arising from a positive blood-alcohol test is far stronger than that arising

from a refusal to take the test.). Moreover, in this particular case, there was

other evidence of a guilty conscience because of defendants attempts to

conceal the fact that he was driving. Admitting evidence of the refusal in

this case did not unduly prejudice defendant.

c. None of the other provisions of ORS 136.432 require

suppression.

Defendant does not argue that the remaining parts of ORS 136.432

required the trial court to exclude evidence of the refusal. He makes no

claim that admitting the refusal as evidence in the DUII trial violated his

constitutional rights. To the extent that this court considers the

constitutional arguments contained in the amicus brief for purposes of

determining admissibility, those claims are discussed at the end of this brief.

Suffice it to say, the admission of the evidence did not violate defendants

rights to due process or equal protection. And defendant does not assert that

admission of evidence of the refusal violated the rules of evidence pertaining

to privilege or hearsay. Because the evidence was relevant and otherwise


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admissible, ORS 136.432 did not permit suppression. The trial court

correctly denied defendants motion to suppress.16

C. If the trial court erred by admitting evidence of the refusal, the

error was harmless because of the other evidence presented to thejury.

As discussed above, the trial court properly admitted evidence of

defendants refusal. But should this court find otherwise, any such error was

harmless. Errormay notbe predicated upon a ruling which admits or

excludes evidence unless a substantial right of a party is affected * * *.

OEC 103(1). A criminal defendant who assigns error to the admission of

evidence is required to prove that the error was not harmless. State v.

Lotches, 331 Or 455, 487, 17 P3d 1045 (2000), cert den, 534 US 833 (2001).

An appellate court must affirm a conviction regardless of evidentiary error if

there is little likelihood that the error affected the verdict. State v. Davis,

336 Or 19, 33, 77 P3d 1111 (2003). Affirmation is appropriate here.

If the trial court should not have admitted evidence of defendants

refusal, the other evidence in this case rendered that error harmless. First,

there was overwhelming evidence that defendant was guilty of driving under

the influence of alcohol. As recited in the statement of facts, the evidence

16The Court of Appeals recently decided this issue, in a manner

consistent with the states argument here, in State v. Bloom, 216 Or App

245, 172 P3d 663 (2007), rev den, 344 Or 280 (2008).


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established: (1) defendant was drinking alcohol with his friend prior to

driving; (2) defendant drove away, alone, in a car that was registered to him

and his wife; (3) he drove erratically and at high speed; (4) he was involved

in a single-car crash; (5) he moved to the passenger side of the car and

fabricated a claim that someone else had been driving; (6) he smelled of

alcohol, his eyes were glassy and bloodshot, and his eyelids drooped; and (7)

he failed the field sobriety tests. That evidence, without any evidence that

defendant refused a breath test, would have sufficed to convict defendant of

DUII.17

Second, the impact of evidence of the refusal was tempered by

evidence demonstrating defendants level of comprehension. The deputy

testified that he and defendant had difficulty communicating, and that he had

asked defendant, in English, to take the test. The jury knew that defendant

may have had limited understanding of what the deputy was asking him to

do. In light of that evidence, and the other evidence of impaired driving and

defendants consciousness of guilt, there was little likelihood that the

17Defendant observes that there was evidence of a head injury,

which could have affected his conduct after the car accident. (Pet Br 36).

There was no definite evidence that any injury affected defendants

behavior. Nor does the injury negate the evidence that defendant, before he

was injured, consumed alcohol, drove his car erratically and at high-speed,

and was involved in a serious single-car crash.


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evidence of the refusal affected the verdict in this case.

D. The trial court correctly denied defendants motion for a

judgment of acquittal on the violation of refusing a breath test.

The trial court was not obliged to acquit defendant of the violation of

refusing a breath test. The issue presented by a motion for a judgment of

acquittal is whether, viewing the evidence in the light most favorable to the

state, a rational trier of fact could have found the essential elements of the

crime proved beyond a reasonable doubt. State v. Cervantes, 319 Or 121,

125, 873 P2d 316 (1994). Courts resolve any conflicts in the evidence in

favor of the state and give the state the benefit of all reasonable inferences

that properly may be drawn. Cervantes, 319 Or at 125. Nor did the Court of

Appeals err in reviewing the actions of the trial court. The issue on appeal

is not whether [the reviewing court] believes defendant is guilty beyond a

reasonable doubt, but whether the evidence is sufficient for [the trier of fact]

to so find. State v. Cunningham, 320 Or 47, 63, 880 P2d 431 (1994). The

evidence here sufficed to support the violation.

To assess that evidence, it is necessary to consider what elements the

state had to prove to support the violation.18

ORS 813.095(1) defines the

violation, stating that [a] person commits the offense of refusal to take a

18A refusal is traffic violation because it is punishable by a fine

and not imprisonment. ORS 153.008(1)(b).


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breath test if the person refuses to take a breath test when requested to do so

in accordance with the provisions of ORS 813.100. The statute does not

require the state to prove, as an element, that defendant understood the

advisement. At most, ORS 813.095, by its reference to ORS 813.100,

contains an attenuated link to the implied consent advisement

ORS 813.100 refers to ORS 813.130, and that statute sets-out the

advisement. But that reference does not mean that whether a defendant

understood the implied consent rights and consequences is an element of

the traffic violation. See,e.g., State v. Probst, 339 Or 612, 625, 124 P3d

1237 (2005) ([I]n prosecutions for felony DUII, the existence of the

predicate convictions is an element of the felony charge that the state must

prove beyond a reasonable doubt, but the validity of the predicate

convictions is not an element.) (emphasis in original). Like the other

statutes discussed in this case, ORS 813.095 contains no mandate that an

arrestee understand the advisement before he or she is convicted of the

violation of a refusal. Where an officer has reason to believe a driver is

intoxicated and asks the driver to submit to testing, a refusal to submit,

without more, will suffice to prove the violation.

Here, the deputy had reason to believe that defendant was driving

under the influence, and he asked defendant to submit to a breath test.

Defendant knew that the deputy was asking defendant to submit to a breath


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test. Tr 35, 205. Defendant thought for a while, and then asked the officer

what the officer would do if he were defendant. When the officer stated that

he could not answer that, defendant refused to take the breath test. From this

evidence, a rational trier of fact could find the essential elements of the

violation. The trial court correctly declined to acquit defendant.

E. This court should not consider the unpreserved constitutional

arguments contained in the amicus brief because the state had no

opportunity to meet those arguments.

Defendant did not present any constitutional arguments when he

argued his case below, and his brief on the merits does not address any such

issue. But wholly unpreserved constitutional arguments have been presented

to this court by way of the amicus brief filed by the American Civil Liberties

Union (ACLU). The court should not consider those unpreserved

arguments.

Preservation is intended to give a trial court a chance to address a

particular contention, and to possibly avoid or correct an error, which may

dispense with the need for an appeal. State v. Walker, 350 Or 540, 548, 258

P3d 1228 (2011). The rule is also intended to ensure fairness, so that the

opposing party is not taken by surprise, misled, or denied an opportunity to

meet an argument. Id. (citingDavis v. OBrien, 320 Or 729, 737, 891 P2d

1307 (1995). Those intentions were not served in this case.


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The amicus brief raises a federal due process issue. (Amicus Br 6-9).

It argues that admission of the refusal at trial was fundamentally unfair,

because defendant did not understand the rights and consequences

advisement. Had the state been afforded the opportunity, it could have

developed evidence in this case to address such a claim.

Specifically, the state would have had an opportunity to show that

defendant had, in fact, been advised of the rights and consequences in

Spanish. Defendant possessed an Oregon driver license. (App Br ER 1).

The prosecutor could have shown that the State of Oregon provides Spanish-

speaking drivers with a Department of Motor Vehicles (DMV) Manual,

written in Spanish. The state could possibly have established that, when

defendant received his license, the DMV distributed that manual to all

Spanish-speaking drivers.19

The state could have established that the

manual contained the full advisement of the rights and consequences, written

in Spanish. Furthermore, defendant had twice before been convicted of

DUIIonce in 1996 and again in 2002. Tr 214, 220. The state could

possibly have shown that defendant knew the rights and consequences

19Given the undeveloped evidence, it is not known whether the

DMV provided that manual to Spanish-speaking drivers at the time

defendant obtained his license or whether the manual defendant might have

received contained the advisement.


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advisement because of those previous convictions. Such evidence could

have rebutted a claim that defendant lacked information concerning refusals,

and could have met the argument that admitting evidence of the refusal was

a fundamentally unfair due process violation.

The same type of evidence could have been developed to meet the

claim in the amicus brief that the state was denying Article I, section 20,

protection to non-English speakers. (Amicus Br 12-17). The brief argues

that individuals are subjected to haphazard unequal treatment if not given the

advisement in their own language (Amicus Br 14), and there is a policy

that creates a class that could be defined as those who the officer knows he

is not meaningfully communicating with[.] (Amicus Br 16). The evidence

described above could show that defendant did not receive unequal

treatment, and it could meet the first part of that argument. At the very least,

such evidence might show that any failure to properly inform defendant of

advisement procedures was harmless because defendant was otherwise made

aware of the rights and consequences. Moreover, the state could have

developed evidence that the DMV had procedures to ensure that drivers,

including those who speak English and those who did not, were informed of

the rights and consequences. See, e.g., City of Salem v. Bruner, 299 Or 262,

270, 702 P2d 70 (1985) (Article I, section 20, protects against standardless

grants or denials of privileges or immunities to individual citizens). The


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state could potentially have shown that it had no policy of haphazard

treatment. In other words, it might have proved that there was no policy

of the kind mentioned by amicus.

Because defendant never raised the issues below, the state had no

opportunity to develop evidence to meet the constitutional issues the amicus

brief now raises for the first time. And neither the trial court, nor the Court

of Appeals, had an opportunity to consider any such evidence and address

the constitutional claims. The issues presented by amicus are raised in

violation of the rule of preservation. For that reason, they do not warrant

consideration by this court.

F. In any event, defendants constitutional rights were not violated.

1. The due process claims lack merit because defendants trial

was not fundamentally unfair.

The state did not render defendants trial fundamentally unfair, in

violation of defendants right to due process, by using evidence of

defendants refusal. Even though an officer fails to give warnings to an

arrestee, admitting evidence of a defendants refusal does not violate due

process rights. See, e.g., Neville, 459 US at 565 ([W]e do not think it

fundamentally unfair for South Dakota to use the refusal to take the test as

evidence of guilt, even though respondent was not specifically warned that

his refusal could be used against him at trial.). And if Deputy Romans

failed to properly inform defendant as required by statute, that did not negate


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the fact that this defendant knew he was being asked to take a breath test and

refused. Defendant did, in fact, refuse, and it was not a fundamentally unfair

constitutional violation to use that refusal at trial. Any technical failure by

the deputy in giving the advisement amounted to nothing more than a

statutory violation. [A] mere error of state law does not amount to a

denial of due process. Gryger v. Burke, 334 US 728, 731, 68 S Ct 1256, 92

L Ed 2d 1683 (1948). See alsoSpencer v. Texas, 385 US 554, 563-564, 87

S Ct 648, 17 L Ed 2d 606 (1967) (the due process clause does not safeguard

the meticulous observance of state procedural prescriptions).

The federal cases cited by amicus do not support a due process

violation. Relying first onDoyle v. Ohio, 426 US 610, 96 S Ct 2240, 49

L Ed 2d 91 (1976), amicus contends that: When a person does not

understand the consequences of failing to comply with a warning, it is

fundamentally unfair and violates due process for a court to impose on that

person the consequences of failing to comply with the warning. (Amicus Br

6-7). Doyle does not support the blanket rule proposed by that argument.

Doyle involved impeachment based on a defendants exercise of his

constitutional right to remain silent after the defendant had received

Miranda warnings. The Court reasoned that the warnings implicitly assured

the defendant that his silence would not be used against him and, for that

reason, it would be fundamentally unfair and a deprivation of due process


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to allow the silence to be used as impeachment. 426 US at 619. Nor does

Neville stand for the proposition that implied consent laws survive due

process scrutiny only when the evidence shows that the defendant

understood the consequences of refusing to take the breath test, as amicus

contends. (Amicus Br 7). InNeville, the Court held that using evidence of a

refusal after failing to warn the defendant did not violate due process

because police did not say anything that tricked the defendant into believing

that the refusal would not be used against him. 459 US at 566. The

reasoning inDoyle andNeville does not support the existence of a due

process violation in this case.

Amicus also relies on this courts holding in State v. Ruiz, 251 Or 193,

195, 444 P2d 32 (1968). Ruiz, however, involvedMiranda warnings and the

requirement that a defendant understand his constitutional rights before he

can validly waive them. The case did not involve an advisement of statutory

rights, andRuiz is inapposite.

Finally, the three state court decisions that amicus cites to support its

due process argument are based on the implied consent laws of the particular

state. See, e.g., State v. Whitman County Dist. Court, 105 Wash 2d 278,

282, 714 P2d 1183 (1986) (holding that the accused has a right under the

implied consent statute to be afforded the opportunity to make a knowing

and intelligent decision whether to submit to an evidentiary breath


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test)(emphasis added); Couch v. Rice, 23 Ohio App 2d 160, 161, 261 NE2d

187 (1970) (same); State v. Marquez, 202 NJ 485, 507-508, 998 A2d 421

(2010) (same; specifically declining to reach defendants constitutional due

process claim). Indeed, amicus recognizes as much: At least three other

states have found that implied consent statutes require that an individual

have a meaningful opportunity to understand the consequences of refusal to

take a chemical or breath test. (Amicus Br 11)(emphasis added). None of

those cases support the proposition that Oregons implied consent statutes

violate federal due process principles.20

Where an arrestee has, in fact, refused testing, it is not fundamentally

unfair to admit evidence of the refusal at trial. The refusal exists regardless

of whether or not the person understands the advisement required by statute.

Under such circumstances, evidence of a refusal does not violate due process

principles.

20

Other states have held that an arrestee does not have a right,under the various implied consent laws and under due process and equal

protection provisions, to understand advisements such as the advisement

contained in the Oregon statutes. See, e.g., People v. Wegielnik, 152 Ill 2d

418, 605 NE2d 487, 489-90 (1992); State v. Garcia, 756 NW2d 216, 219-23

(Iowa 2009);Rodriguezv. State, 275 Ga 283, 565 SE 2d 458, cert den, 537

US 1046 (2002).


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2. There was no violation of Article I, section 20.

The advisement in this case did not deny defendant his rights under

Article I, section 20, of the Oregon Constitution. That provision states that

[n]olaw shall be passed granting to any citizen or class of citizens

privileges, or immunities, which, upon the same terms, shall not equally

belong to all citizens. (Emphasis added.) A defendant has the burden to

establish that he received constitutionally impermissible treatment. See, e.g.,

State v. Clark, 291 Or 231, 243, 630 P2d 810, cert den, 454 US 1084 (1981).

There was no evidence here that defendant was denied a privilege or

immunity in violation of the Oregon Constitution.

The limited scope of Article I, section 20, is apparent from its text,

which expressly refers to laws that grant privileges or immunities.

Nothing in the text remotely suggests that the provision broadly and

generally prohibits any and all unequal treatment, as the amicus argument

presupposes. Because Article I, section 20, is implicated only by laws that

grant privileges or immunities, it does not apply to this case. As already

explained, Oregons implied consent statute does not give an arrestee a legal

right to the advisement. The advisement is a coercive mechanism that is

used by the state to gather evidence it does not confer a benefit on any

individual or class. In other words, it does not grant a privilege or


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immunity. Because no privileges or immunities are granted under the

implied consent statute, Article I, section 20, does not apply.

Moreover, even if Article I, section 20, did apply in this c

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