State v. Short

898 P.2d 223, 135 Or. App. 289, 1995 Ore. App. LEXIS 968, 1995 WL 385607

Opinions

De MUNIZ, J.

Defendant appeals her conviction for driving under the influence of intoxicants (DUII) for acts committed on October 25, 1992. When the officer asked defendant to submit to an Intoxilyzer, he advised her that, if she refused to take the test, her license would be suspended for one year and that, if she took the test and failed it, her license would be suspended for 90 days. Defendant refused to take the test. She argues that the trial court erred in allowing the state to introduce the evidence that her refusal would result in a longer suspension than would result from taking the test and failing it.

Defendant’s argument was answered contrary to her position in City of Portland v. Stanley, 53 Or App 254, 631 P2d 826, rev den 291 Or 771 (1981). There, the arresting officer testified that he had informed the defendant of the consequences of refusing to take the breath test and, in closing argument, the prosecutor commented on the consequences.¹ We held that the prosecutor’s comments on the refusal and the inferences to be drawn from it were proper.

Here, defendant has raised no issue that her refusal to take the test should not have been admitted into evidence.² Indeed, at trial, she agreed to stipulate to her refusal. The court did not err in permitting testimony as to what the consequences of that refusal were.

Affirmed.

1

Those comments were:

“ ‘And after all those consequences were read to him he still declined. And you can infer from that, ladies and gentlemen, consciousness of guilt on his part.’ ” Id. at 256.

2

We specifically do not address what effect, if any, State v. Fish, 321 Or 48, 893 P2d 1023 (1995), has on the admissibility under ORS 813.310 of a refusal to take a chemical test.