field sobriety test in Oregon

1989In State v. Green, 68 Or App 518, 526 , 684 P2d 575 , rev den 297 Or 601 (1984), we held that a defendant invoked his right to remain silent under Article I, section 12, when he refused, before his arrest, to take a field sobriety test, and that the state could not introduce that refusal in evidence.

1989In State v. Green, 68 Or App 518, 526 , 684 P2d 575 , rev den 297 Or 601 (1984), we held that a defendant invoked his right to remain silent under Article I, section 12, when he refused, before his arrest, to take a field sobriety test, and that the state could not introduce that refusal in evidence.

2014The legislative purpose of informing a person of the consequences of refusing to take a field sobriety test “was not to create a right, but to bring further pressure on suspected intoxicated drivers to take the field sobriety tests.” State v. Trenary, 316 Or 172, 177 , 850 P2d 356 (1993).

2014The legislative purpose of informing a person of the consequences of refusing to take a field sobriety test “was not to create a right, but to bring further pressure on suspected intoxicated drivers to take the field sobriety tests.” State v. Trenary, 316 Or 172, 177 , 850 P2d 356 (1993).

1994The state argues that that holding is inconsistent with our holding in State v. Schaffer, 114 Or.App. 328, 332 , 835 P.2d 134 (1992), that "a request to perform field sobriety tests does not create inherently compelling circumstances for Miranda purposes, as a matter of law." It is unnecessary to address that question, however, because here Miranda -like warnings preceded the officer's questions. [3] We note that State v. Lawrence, supra , and State v. Harrison, supra , were decided after the trial court's ruling in this case. [4] The dissent argues that we are bound by the trial court's findi

1994The state argues that that holding is inconsistent with our holding in State v. Schaffer, 114 Or.App. 328, 332 , 835 P.2d 134 (1992), that "a request to perform field sobriety tests does not create inherently compelling circumstances for Miranda purposes, as a matter of law." It is unnecessary to address that question, however, because here Miranda -like warnings preceded the officer's questions. [3] We note that State v. Lawrence, supra , and State v. Harrison, supra , were decided after the trial court's ruling in this case. [4] The dissent argues that we are bound by the trial court's findi

2022The officer articulated the safety hazards of conducting 2 On cross-examination, Farmer testified that, “I spoke to him about his tat- toos and potential previous incarceration history.” When specifically asked if he spoke with defendant about his tattoos, he responded, “I asked him if he’d ever been incarcerated.” Cite as 317 Or App 752 (2022) 761 a field sobriety test in the early hours of the morning.

2022Id.

2021In the former situation, procur- ing a warrant is not a punishment for the refusal to con- sent, nor does it produce evidence, like a confession, that the state would otherwise not obtain; it is merely an alternative 7 As a general matter, a field sobriety test is a “search.” See, e.g., State v. Nagel, 320 Or 24, 31, 36 , 880 P2d 451 (1994). 8 For two thoughtful views on that history, one might consider Justice Linde’s succinct dissenting opinion in State v. Bates, 307 Or 170 , 764 P2d 550 (1988) (Linde, J., dissenting) (discussing that history and the “dubious proposition” apparently endorsed

2021In the former situation, procur- ing a warrant is not a punishment for the refusal to con- sent, nor does it produce evidence, like a confession, that the state would otherwise not obtain; it is merely an alternative 7 As a general matter, a field sobriety test is a “search.” See, e.g., State v. Nagel, 320 Or 24, 31, 36 , 880 P2d 451 (1994). 8 For two thoughtful views on that history, one might consider Justice Linde’s succinct dissenting opinion in State v. Bates, 307 Or 170 , 764 P2d 550 (1988) (Linde, J., dissenting) (discussing that history and the “dubious proposition” apparently endorsed

2021In the former situation, procur- ing a warrant is not a punishment for the refusal to con- sent, nor does it produce evidence, like a confession, that the state would otherwise not obtain; it is merely an alternative 7 As a general matter, a field sobriety test is a “search.” See, e.g., State v. Nagel, 320 Or 24, 31, 36 , 880 P2d 451 (1994). 8 For two thoughtful views on that history, one might consider Justice Linde’s succinct dissenting opinion in State v. Bates, 307 Or 170 , 764 P2d 550 (1988) (Linde, J., dissenting) (discussing that history and the “dubious proposition” apparently endorsed

2021In the former situation, procur- ing a warrant is not a punishment for the refusal to con- sent, nor does it produce evidence, like a confession, that the state would otherwise not obtain; it is merely an alternative 7 As a general matter, a field sobriety test is a “search.” See, e.g., State v. Nagel, 320 Or 24, 31, 36 , 880 P2d 451 (1994). 8 For two thoughtful views on that history, one might consider Justice Linde’s succinct dissenting opinion in State v. Bates, 307 Or 170 , 764 P2d 550 (1988) (Linde, J., dissenting) (discussing that history and the “dubious proposition” apparently endorsed

2021In the former situation, procur- ing a warrant is not a punishment for the refusal to con- sent, nor does it produce evidence, like a confession, that the state would otherwise not obtain; it is merely an alternative 7 As a general matter, a field sobriety test is a “search.” See, e.g., State v. Nagel, 320 Or 24, 31, 36 , 880 P2d 451 (1994). 8 For two thoughtful views on that history, one might consider Justice Linde’s succinct dissenting opinion in State v. Bates, 307 Or 170 , 764 P2d 550 (1988) (Linde, J., dissenting) (discussing that history and the “dubious proposition” apparently endorsed

2021In the former situation, procur- ing a warrant is not a punishment for the refusal to con- sent, nor does it produce evidence, like a confession, that the state would otherwise not obtain; it is merely an alternative 7 As a general matter, a field sobriety test is a “search.” See, e.g., State v. Nagel, 320 Or 24, 31, 36 , 880 P2d 451 (1994). 8 For two thoughtful views on that history, one might consider Justice Linde’s succinct dissenting opinion in State v. Bates, 307 Or 170 , 764 P2d 550 (1988) (Linde, J., dissenting) (discussing that history and the “dubious proposition” apparently endorsed

2020Rather, in his motion to sup- press, he argued that circumstances became “compelling” when “all three officers were directing him what to do and where to go and prevented him from moving freely in any manner including taking steps to physically touch the Defendant and direct him to places they wanted him to go.” Defendant argued that “[t]he violation then is during the field sobriety test, which is just before the arrest[.]” Thus, whether or not defendant invited any error regarding the Cite as 307 Or App 808 (2020) 819 timing of the Miranda violation, he certainly did not preserve an argument

2018I want to say a few things' " and discussed his relationship with the victim's mother, the detective's handling of the investigation, and his own innocence). *425 The state argues that defendant showed a "willingness" to continue the interrogation when, after invoking his right to counsel, and without further prompting, he answered Knea's question about the other "male that was at the house." The state likens this case to State v. Kramyer , 222 Or.App. 193 , 194 P.3d 156 (2008), in which the defendant, who was suspected of driving while intoxicated, requested a lawyer but then continued to par

2018I want to say a few things' " and discussed his relationship with the victim's mother, the detective's handling of the investigation, and his own innocence). *425 The state argues that defendant showed a "willingness" to continue the interrogation when, after invoking his right to counsel, and without further prompting, he answered Knea's question about the other "male that was at the house." The state likens this case to State v. Kramyer , 222 Or.App. 193 , 194 P.3d 156 (2008), in which the defendant, who was suspected of driving while intoxicated, requested a lawyer but then continued to par

2014Because a field sobriety test constitutes a search under Article I, section 9, State v. Nagel, 320 Or 24, 31 , 880 P2d 451 (1994), a warrant is required, or the search must come within a recognized exception to the warrant requirement, State v. Paulson, 313 Or 346, 351 , 833 P2d 1278 (1992).

2014Because a field sobriety test constitutes a search under Article I, section 9, State v. Nagel, 320 Or 24, 31 , 880 P2d 451 (1994), a warrant is required, or the search must come within a recognized exception to the warrant requirement, State v. Paulson, 313 Or 346, 351 , 833 P2d 1278 (1992).

2009According to the record, the HGN test was the only field sobriety test that the officer administered. [3] See State v. Bretches, 225 Or.App. 602 , 202 P.3d 883 , rev. den., 346 Or. 361 , 211 P.3d 930 (2009) (holding that where the defendant was told he was free to leave but continued to converse with the officer, his consent did not occur in the course of an illegal stop); see also State v. Peppard, 172 Or.App. 311 , 18 P.3d 488 , vac'd, 332 Or. 630 , 34 P.3d 168 (2001) (holding that no violation occurred under Article I, section 9, when an officer told the defendant he was free to leave after

2009According to the record, the HGN test was the only field sobriety test that the officer administered. [3] See State v. Bretches, 225 Or.App. 602 , 202 P.3d 883 , rev. den., 346 Or. 361 , 211 P.3d 930 (2009) (holding that where the defendant was told he was free to leave but continued to converse with the officer, his consent did not occur in the course of an illegal stop); see also State v. Peppard, 172 Or.App. 311 , 18 P.3d 488 , vac'd, 332 Or. 630 , 34 P.3d 168 (2001) (holding that no violation occurred under Article I, section 9, when an officer told the defendant he was free to leave after

2009According to the record, the HGN test was the only field sobriety test that the officer administered. [3] See State v. Bretches, 225 Or.App. 602 , 202 P.3d 883 , rev. den., 346 Or. 361 , 211 P.3d 930 (2009) (holding that where the defendant was told he was free to leave but continued to converse with the officer, his consent did not occur in the course of an illegal stop); see also State v. Peppard, 172 Or.App. 311 , 18 P.3d 488 , vac'd, 332 Or. 630 , 34 P.3d 168 (2001) (holding that no violation occurred under Article I, section 9, when an officer told the defendant he was free to leave after

1998State v. Fish, 321 Or. 48, 60 , 893 P.2d 1023 (1995). [4] The dissent cites State v. Penrod, 133 Or.App. 454 , 892 P.2d 729 (1995), for the proposition that "the right to consult with counsel in a DUII setting includes the right to a private consultation." 154 Or.App. at 104 , 960 P.2d at 889 .

1998State v. Fish, 321 Or. 48, 60 , 893 P.2d 1023 (1995). [4] The dissent cites State v. Penrod, 133 Or.App. 454 , 892 P.2d 729 (1995), for the proposition that "the right to consult with counsel in a DUII setting includes the right to a private consultation." 154 Or.App. at 104 , 960 P.2d at 889 .

1998Typically, but not necessarily, scientific evidence is presented by an expert witness who can explain data or test results and, if necessary, explain the scientific principles which are said to give the evidence its reliability or accuracy." Brown, 297 Or. at 407-08 , 687 P.2d 751 . [5] In O'Key, the court elaborated on the meaning of "scientific evidence." In that case, the defendant was charged with driving while under the influence of intoxicants, and the issue was the admissibility of a field sobriety test known as the Horizontal Gaze Nystagmus (HGN) test.

1998Typically, but not necessarily, scientific evidence is presented by an expert witness who can explain data or test results and, if necessary, explain the scientific principles which are said to give the evidence its reliability or accuracy." Brown, 297 Or. at 407-08 , 687 P.2d 751 . [5] In O'Key, the court elaborated on the meaning of "scientific evidence." In that case, the defendant was charged with driving while under the influence of intoxicants, and the issue was the admissibility of a field sobriety test known as the Horizontal Gaze Nystagmus (HGN) test.

1998State v. Fish, 321 Or. 48, 60 , 893 P.2d 1023 (1995). [4] The dissent cites State v. Penrod, 133 Or.App. 454 , 892 P.2d 729 (1995), for the proposition that "the right to consult with counsel in a DUII setting includes the right to a private consultation." 154 Or.App. at 104 , 960 P.2d at 889 .

1998State v. Fish, 321 Or. 48, 60 , 893 P.2d 1023 (1995). [4] The dissent cites State v. Penrod, 133 Or.App. 454 , 892 P.2d 729 (1995), for the proposition that "the right to consult with counsel in a DUII setting includes the right to a private consultation." 154 Or.App. at 104 , 960 P.2d at 889 .

1998The following colloquy took place between the ALJ and Janzen: “[ALJ]: [Dlid you ask him to take a field sobriety test? “[Janzen]: Yes, I did. “[ALJ]: And what was his response? ‘TJanzen]: That he would take them. '[Janzen]: He agreed to take the test.' In State v. Ramos, 149 Or App 269, 272 , 942 P2d 841 (1997), we held that “consent is a valid exception to the warrant requirement and that probable cause is not a necessary prerequisite to asking a defendant for consent to perform field sobriety tests in the context of a DUII stop.” (Emphasis in original.) Typically, field sobriety tests contai

1998The following colloquy took place between the ALJ and Janzen: “[ALJ]: [Dlid you ask him to take a field sobriety test? “[Janzen]: Yes, I did. “[ALJ]: And what was his response? ‘TJanzen]: That he would take them. '[Janzen]: He agreed to take the test.' In State v. Ramos, 149 Or App 269, 272 , 942 P2d 841 (1997), we held that “consent is a valid exception to the warrant requirement and that probable cause is not a necessary prerequisite to asking a defendant for consent to perform field sobriety tests in the context of a DUII stop.” (Emphasis in original.) Typically, field sobriety tests contai

1997State v. Schaffer, 114 Or App 328, 332 , 835 P2d 134 (1992); see also State v. Fish, 321 Or 48, 85 , 893 P2d 1023 (1995) (Graber, J., concurring in part and dissenting in part) (valid stop to administer field sobriety tests is neither custody nor a setting that is “compelling”); State v. Whitehead, 121 Or App 619, 623 , 855 P2d 1149 (1993) (driver’s performance of field tests generally does not violate rights against compelled self-incrimination); State v. Hackworth, 69 Or App 358, 363 , 685 P2d 480 (1984) (“[T]he fact that a motorist may temporarily feel that he is not ‘free to leave’ does no

1997State v. Schaffer, 114 Or App 328, 332 , 835 P2d 134 (1992); see also State v. Fish, 321 Or 48, 85 , 893 P2d 1023 (1995) (Graber, J., concurring in part and dissenting in part) (valid stop to administer field sobriety tests is neither custody nor a setting that is “compelling”); State v. Whitehead, 121 Or App 619, 623 , 855 P2d 1149 (1993) (driver’s performance of field tests generally does not violate rights against compelled self-incrimination); State v. Hackworth, 69 Or App 358, 363 , 685 P2d 480 (1984) (“[T]he fact that a motorist may temporarily feel that he is not ‘free to leave’ does no