State v. Rohrs

Citations: 970 P.2d 262; 157 Or. App. 494; 1998 Ore. App. LEXIS 2173Docket: TC96-15055; CA A97743

Court: Court of Appeals of Oregon; December 9, 1998; Oregon; State Appellate Court

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In the case of State of Oregon v. Robert James Rohrs, Sr., the Oregon Court of Appeals upheld a trial court's decision to suppress evidence regarding the defendant's failure to submit to field sobriety tests during a DUII arrest. The arresting officer had provided a modified statutory warning about the consequences of refusal to take the tests, but the court ruled this modification did not adequately address issues outlined in the precedent case State v. Fish. 

The officer had stopped Rohrs under probable cause and requested field sobriety tests twice, receiving no adequate response from the defendant. The officer's warning indicated that failure to submit to these tests could be used against him in court. The court examined the legal framework established by ORS 813.135 and ORS 813.136, which mandate that drivers consent to testing and outline the implications of refusal. The Supreme Court in Fish determined that the statutory requirement creates a dilemma for defendants, as refusing to take the tests is seen as a form of testimony that can imply guilt, conflicting with the right against compelled testimony under Article I, section 12 of the Oregon Constitution. Thus, the court found that the evidence of Rohrs' noncompliance with the tests was not admissible.

For the state to mandate tests, those tests must be non-testimonial. In Fish, the court determined that certain field sobriety tests contained testimonial elements. Since the officer did not specify which tests were required, the court assumed all authorized tests were included, leading to the conclusion that any request for these tests would elicit testimonial evidence, thus violating Article I, section 12. Consequently, evidence of the defendant's refusal to perform these tests was deemed inadmissible. In State v. Nielsen, the court clarified that not all field sobriety tests are inherently testimonial; it focused instead on whether the specific tests performed were testimonial. It defined "testimony" as communication of thoughts or beliefs and held that tests yielding physical evidence of intoxication, without eliciting personal thoughts, are generally non-testimonial. The heel-to-toe walk test and the physical components of the one-leg-stand and modified Romberg tests were ruled non-testimonial. 

In Fish, the officer's failure to distinguish between testimonial and non-testimonial tests necessitated an assumption that a generic field sobriety test request included all tests. Conversely, in the current case, the officer indicated that the refusal or failure to perform "physical tests" would be admissible and clarified that these tests would not require verbal responses. The state argued this made the refusal admissible as the tests were non-testimonial. However, it was noted that the officer did not detail what "physical tests" were to be administered or how they corresponded to approved sobriety tests, leaving ambiguity. Following the reasoning in Nielsen, the burden lies with the state to demonstrate the admissibility of the refusal evidence, as physical actions can reflect an individual's thoughts or beliefs. Thus, the state must clarify what specific "physical tests" were intended to meet the admissibility standard established in Fish.

The term "physical tests," even with the clarification that the defendant would not need to speak, is insufficient to meet constitutional standards in the absence of specific evidence detailing the intended tests. The majority opinion has been affirmed. Justice Warren dissents, arguing that Officer Zbinden properly identified the field sobriety tests, which he claims are non-testimonial as established in prior case law (State v. Fish and State v. Nielsen). Warren contends that the trial court erred by excluding evidence of the defendant's refusal to perform these tests, as they are defined by applicable administrative rules and therefore admissible under ORS 813.136. A field sobriety test must be one approved by the Department of State Police and serve to assess impairment by alcohol or drugs. At the time of the defendant's arrest in August 1996, nine specific tests were authorized, which included the horizontal gaze nystagmus, walk-and-turn, one-leg-stand, Romberg balance, and modified finger-to-nose tests, among others. Tests that do not require verbal communication are considered non-testimonial. Warren emphasizes that Zbinden's warning to the defendant did not create a coercive choice between providing testimonial evidence or refusing to comply. Although Zbinden did not specify the tests, the administrative rules sufficiently defined them, making the defendant's refusal to perform the tests admissible evidence under the law. The dissent argues that the majority's insistence on a higher standard of specificity is unwarranted and impractical, as the officer's instructions inherently identify the tests.

The dissent argues for an interpretation of the statute and Zbinden's actions that aligns with the legislature's intent while adhering to constitutional constraints established by the Supreme Court in *Fish*. The dissenting opinion, supported by Justices Edmonds and Armstrong, criticizes the majority for not achieving this alignment. Notably, Zbinden's warning referred to "physical tests," which should be understood as related to field sobriety tests given the context of his prior requests for such tests. The defendant did not contest the non-testimonial nature of the counting portion of the one-leg-stand test. The court deemed any potential error in admitting verbal performance evidence harmless, as the defendant had successfully recited the alphabet in a related test. The phrase indicating that the tests "differ from field sobriety tests" was clarified to mean they did not require verbal responses, rather than indicating different test types. The referenced rule has been effective since July 16, 1996, and the dissent does not address whether modifications to the tests would impact their efficacy in assessing intoxication.