State v. Hamilton

543 P.3d 704

330 Or.App. 258

STATE of Oregon, Plaintiff-Respondent,

v.Shayna Lynn HAMILTON, Defendant-Appellant.

A172776

Court of Appeals of Oregon.

Argued and Submitted June 21, 2022

January 24, 2024

Jackson County Circuit Court, 18CR31535; Laura A, Cromwell, Judge.

Francis C. Gieringer, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Christopher A. Perdue, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Ortega, Presiding Judge, and Powers, Judge, and Hellman, Judge.

POWERS, J.

₂₆₀Defendant appeals from a judgment of conviction for two counts of driving under the influence of intoxicants (DUII), ORS 813.010 (Counts 1 and 3), and two counts of reckless driving, ORS 811.140 (Counts 2 and 4), arising out of two traffic stops. Among her contentions advanced on appeal, she argues that the trial court erred by denying her motion to suppress evidence of her refusals to perform field sobriety tests (FSTs) during both stops. We conclude that, under State v. Banks, 364 Or. 332, 434 P.3d 361 (2019), refusals to perform FSTs—like refusals to perform breath tests—may be admitted as evidence of guilt if the state proves that law enforcement’s requests to perform the tests could be understood only as a request to submit to the physical act, and not as a request that defendant provide constitutionally significant consent to the tests. Here, the state did not meet that burden, and therefore we conclude that the trial court erred in admitting evidence of defendant’s refusals to participate in the FSTs. We further Summarily reject all but one of defendant’s remaining assignments of error. Accordingly, we reverse and remand.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Standard of Review

[1] In reviewing the denial of a motion to suppress, we accept the trial court’s factual findings that are supported by the evidence and determine whether the court correctly applied legal principles to those facts. State v. Brandes, 317 Or App 672, 674, 506 P.3d 431 (2022). In so doing, we limit our discussion of the facts to the record that was developed at the pretrial hearing. Id. We begin with the undisputed background facts for both stops, which were presented at the hearing on defendant’s motion to suppress and included video footage from the stopping deputies’ body cameras on October 21, 2017, and January 6, 2018.¹

₂₆₁B. October 21, 2017, Incident

Around midnight on October 21, 2017, Deputy Brown was dispatched to a report of a white Toyota Camry that was weaving back and forth and failing to stay in its lane. When Brown located the vehicle, he saw it cross into the opposite lane by about four feet before quickly moving back into its own lane. Brown initiated a traffic stop.

After the Camry pulled over, Brown approached the vehicle, which defendant was driving. Although it was not raining at the time, the windshield wipers were moving at full speed, and defendant struggled to shut them off and find the switch to roll down her window. Brown explained to defendant that he saw her go over the double yellow line and that he observed that she was alternately braking and accelerating. He asked if there was a reason that she was driving that way, and defendant responded that she was driving home from work and was exhausted from working a long day.

Brown told defendant that she was called in as an impaired driver and asked if defendant was on medications or had taken any drugs. Defendant said no. He told defendant that he had "concerns about [her] ability to safely operate a vehicle" and then asked, "So what I would like to do is I would like to administer some standardized field sobriety tests to make sure that you’re safe to drive back to Dixie. Okay? Is that something that you would voluntarily consent to doing tonight?" Defendant refused. She told Brown that she had worked a long day with no breaks and had not eaten that day. Brown responded, "But here’s the deal, if you’re just exhausted * * * if you consented to the field sobriety tests and I was to administer those and you don’t show indicators of impairment, * * * exhaustion is not an intoxicant that I’m looking for. * * * And if you’re not impaired, you’re not impaired and you’re going to be able to drive home." Brown and defendant continued to discuss her driving, and Brown asked again, "So I’m going to ask you one more time. I would like to administer some standardized field sobriety tests to make sure that you’re good to go." Defendant replied that she was not willing to take any sobriety tests.

₂₆₂Brown read defendant her Miranda rights and provided the so-called Rohrs admonishment, which is derived from State v. Rohrs, 157 Or App 494, 499, 970 P.2d 262 (1998), aff’d, 333 Or. 397, 40 P.3d 505 (2002). Brown told defendant, "So I’m going to read you the Rohrs admonishment. I’m going to ask you to submit to a purely physical field sobriety test. None of these tests I will ask you to perform will require you to reveal your thoughts, beliefs, or state of mind." Brown described the horizontal gaze nystagmus test, the walk-and-turn test, and the one-leg stand test. After each description, he asked, "Are you willing to perform this test?" and each time defendant refused. He asked, "Are you willing to perform any tests that I’m going to ask you to perform tonight?" and defendant refused. Brown then arrested defendant.

Deputies searched defendant’s car following her arrest and discovered a prescription bottle containing various pills in the car. Brown testified at the suppression hearing that he did not search the trunk but that he could not remember exactly where he found the bottle. Defendant consented to providing a breath sample and, at the police station, consented to providing a urine sample. The breath sample returned a 0.00 blood alcohol content (BAC), and the urine sample tested positive for various substances including opioids and muscle relaxers, including buprenorphine, norbuprenorphine, carisoprodol, meprobamate, alprazolam, alpha-Hydroxyalprazolam, and phentermine.

C. January 6, 2018, Incident

Deputy Hohl was on duty on January 5, 2018, when shortly before midnight a white Toyota Camry was reported to be running red lights and swerving in its lane. He located the vehicle and observed it go across the fog line and almost into a ditch, jerk back into its lane, and then cross over approximately seven feet beyond the center line and into the opposing lane of travel before jerking back into its lane again. Hohl initiated a traffic stop.

When Hohl approached the vehicle, the windshield wipers were on, despite it being a clear night. Defendant’s speech was slow, and she seemed confused and disoriented. Hohl told defendant that he stopped her because she was ₂₆₃going all over the road and that he saw her almost crash four times. He asked if she had consumed any prescriptions, marijuana, or alcohol. Defendant said that she had not and explained that she was exhausted from working a long shift at work and was distracted picking up her bags off the floor.

Hohl told defendant that her driving and statements were concerning and then asked, "So I was wondering if you would be willing to consent to some field sobriety tests to make sure you are * * *." Defendant interrupted him and said, "Absolutely not." Hohl reiterated how poor defendant’s driving was and asked again if she was taking medications. Defendant said that she was not.

At this point, Deputy Osborne, who was a certified drug recognition expert, or DRE, had arrived at the scene and explained to defendant that he thought that she had "cognitive issues" that were impacting her physical movements and that her speech was slow and slurred. Defendant responded that she was tired. Osborne explained that if it was just tiredness, they would be able to see that in the tests, and he asked, "So what I would like to do is ask you to volunteer to do some field sobriety tests." Defendant refused. Osborne explained the tests that he was asking her to perform, including an eye test, walking a line, and holding one foot in the air. He asked, "With that knowledge, you’re—you’re not willing?" Defendant again said no, reiterating that she had not had anything to drink but was tired and needed to go home.

Osborne then said:

"Let me read you something. Okay? I want to read this to you. Okay?

"I am going to ask you to submit to—to purely physical field sobriety tests. None of the tests I will ask you to perform will require you to reveal your thoughts, beliefs, or state of mind.

"The tests will include the horizontal gaze nystagmus test, the walk-and-turn test, and the one-leg stand test. So pay attention to what I’m saying. Okay?"

He described the tests and demonstrated each of them for her physically. He asked if she had any questions ₂₆₄about the tests and said, "Your refusal or failure * * * to submit to these purely physical tests may be used against you in a civil or criminal proceeding. * * * Do you understand that?" Defendant answered that she did. Osborne stated, "So I would really appreciate jour cooperation in this." Defendant again refused. Osborne asked if she would "mind doing a couple alternative tests" and described those. Still, defendant refused.

The deputies had defendant get out of her car and placed her under arrest. Osborne continued to question why defendant would not perform the tests, stating, "I’m just boggled in my mind. * * * I mean, clearly, you’re not thinking right. I mean I just don’t understand. I mean they are voluntary tests and you can refuse." Defendant refused the tests and later was charged with DUII and reckless driving.

In a search incident to arrest, Osborne found numerous pills in defendant’s purse, which he identified while conducting the search using a particular website...