State v. Stills

447 P.3d 80, 299 Or. App. 194

• Court: Court of Appeals of Oregon
• Decided: August 28, 2019
• Docket: A166183
• Status: Published

Opinion

PER CURIAM

*195Defendant appeals a judgment of conviction for driving under the influence of intoxicants. On appeal, defendant assigns error to the trial court's denial of his motion to suppress his refusal to perform the field sobriety tests (FSTs) and statements made to the officer, making three arguments in support of his assignment: (1) he was subjected to interrogation without first being given Miranda warnings; (2) the officer did not, as required under ORS 813.135 and ORS 813.136, inform him of the consequences of refusing to perform the FSTs; and (3) his refusal was an assertion of his right under Article I, section 9, of the Oregon Constitution to refuse consent to a warrantless search and must be suppressed. We reject defendant's first argument without discussion. The *81state concedes that, based on the unique facts of this case, defendant's refusal to submit to the FSTs was an invocation of his Article I, section 9, right to refuse a warrantless search, and, therefore, is not admissible as evidence of his guilt. On this record, we agree with and accept the state's concession, and, therefore, reverse and remand.¹

Reversed and remanded.

1 Our resolution of defendant's argument regarding the admissibility of his refusal to perform the FSTs based on his third argument obviates our need to address defendant's second argument.