Skip navigation
The Habeas Citebook Ineffective Counsel - Header
× You have 2 more free articles available this month. Subscribe today.

Oregon Supreme Court: State Prohibited From Introducing Breath Test Refusal as Evidence of DUI

by Mark Wilson

The Supreme Court of Oregon held that the Oregon Constitution prohibits prosecutors from using a criminal defendant’s refusal to submit to a breath test as evidence against him in a prosecution for driving under the influence of intoxicants (“DUI”). 

Under Oregon’s Implied Consent law, an individual who operates a motor vehicle on a public road is deemed to have given consent to a breath test to determine the person’s blood­alcohol content (“BAC”) if the person is arrested for driving under the influence of intoxicants. ORS 813.100(1).

However, the person may refuse to submit to a breath test and require the State to apply for a warrant to determine the person’s BAC. ORS 813.100(2). “If a person refuses to submit to a chemical test under ORS 813.100,” Oregon law provides that “evidence of the person’s refusal is admissible in any civil or criminal action.” ORS 813.310. The person is also subject to license suspension and a $650 fine. ORS 813.100(3) and 813.095. 

Rodney Banks, Sr., was arrested for driving while intoxicated and asked to submit to a breath test after driving his vehicle into a Portland, Oregon, fence. After Banks refused, police did not obtain a warrant to obtain evidence of his BAC. 

Before trial, Banks moved to suppress evidence of his refusal to consent to the breath test. He argued that using his refusal as substantive evidence of his guilt, as allowed by ORS 813.310, violates Oregon constitutional prohibitions against illegal search and seizure. The trial court denied his motion. 

During trial, the State presented evidence of Banks’ refusal to support an inference that he knew he was intoxicated. Banks was ultimately convicted of DUI. 

The Oregon Supreme Court reversed, holding that the unreasonable search and seizure provision of Article I, section 9, of the Oregon Constitution prohibits the State from using evidence of Banks’ refusal as evidence against him. 

The Court first rejected “the state’s argument that, by driving on a public highway, defendant irrevocably gave his consent to a later search of his breath and had no constitutional right to refuse a request to search at the time of arrest.” 

The Court then ruled that as the proponent of the evidence, the State bears the burden of establishing the admissibility of a defendant’s refusal to submit to a breath test. “The state must demonstrate that the officer’s question” about whether the defendant would consent to a breath test “could reasonably be understood only as a request to provide physical cooperation and not as a request for constitutionally-significant consent to search,” the Court held. “If the state fails to establish that fact, then a driver’s refusal cannot be admitted in evidence against the driver.” 

The State failed to meet that burden insofar as the officer’s question of Banks was ambiguous. He “could have been asking defendant to physically submit to a test that was justified by a warrant exception,” the Court found. Or he “could have been asking defendant for his consent to search, thereby establishing a warrant exception.” Although it had never addressed the issue before, the Court then approvingly cited to decisions from several other jurisdictions in concluding that the fact that the State has a constitutional basis to search does not make defendant’s refusal to provide consent admissible. “An individual should be able to act on the presumption that a warrantless search is unreasonable,” the Court held. “Permitting the state to adduce evidence of the exercise of that right would place an impermissible burden on its assertion.” 

Citing Birchfield v. North Dakota, 136 S. Ct. 2160 (2016), the Court observed that “the search incident to arrest exception also might justify a warrantless search of a driver’s breath.” One Justice went a step further, noting in a concurring opinion that “the state has not offered a considered argument that we should follow Birchfield ... and hold under the Oregon Constitution that a breath test is categorically permissible as a search incident to arrest for driving under the influence of intoxicants (DUI).”

Had the State made such an argument it appears clear that at least that Justice would have followed Birchfield and allowed the State to introduce evidence of the refusal to consent to a breath test to support a DUI conviction. Oregon prosecutors will surely take the hint. See: State v. Banks, 434 P.3d 361 (Ore. 2019). 

As a digital subscriber to Criminal Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login

Related legal case

State v. Banks



The Habeas Citebook Ineffective Counsel Side
Advertise here
Stop Prison Profiteering Campaign Ad 2