State v. Eskie
Case # A151770
Full Text of Opinion: http://www.publications.ojd.state.or.us/docs/A151770.pdf
A Lane County Sheriff’s Deputy stopped defendant Eskie for erratic driving in order to conduct a DUII investigation. As part of this investigation the Deputy attempted to perform a field sobriety test (“FST”) by asking Eskie to submit to a test designed to check an individual’s eyes for horizontal gaze nystagmus (“HGN”), an involuntary rapid movement of the eyeball. Eskie agreed to the test but did not follow the Deputy’s directions. When the Deputy told Eskie that he was not following the directions, Eskie replied “I know. I’m looking you in the eyes.” The Deputy was unable to finish the test and arrested Eskie for DUII. The Deputy never informed Eskie that a refusal to complete FST’s could be used against him at a trial.
Prior to the trial, Eskie sought to exclude any evidence that he had refused to cooperate with the field sobriety tests. His motion was based upon ORS 813.135 which states that “before the tests are administered, the person requested to take the tests shall be informed of the consequences of refusing to take or failing to submit to the tests under ORS 813.136.” ORS 813.136 states that “if a person refuses or fails to submit to field sobriety tests as required by ORS 813.135, evidence of the person’s refusal or failure to submit is admissible in any criminal or civil action or proceeding arising out of allegations that the person was driving while under the influence of intoxicants.”
The State based its argument for being allowed to use the refusal against Eskie, in part, upon ORS 136.432 which states that “a court may not exclude relevant and otherwise admissible evidence in a criminal action on the grounds that it was obtained in violation of any statutory provision.” The trial court denied Eskie’s motion stating “while there is a statutory requirement that – to give somebody information about the consequences of not submitting to [FSTs], there are many cases that discuss the fact that a statutory violation does not necessarily result in suppression. And because we don’t reach a constitutional question on the HGN test, the defendant’s motion is denied.” During the trial, the Deputy and State emphasized Eskie’s refusal to complete the HGN test and the jury returned a verdict of guilty for the DUII charge.
The Court of Appeals addresses this issue by first discussing ORS 136.432 which states that “a court may not exclude relevant and otherwise admissible evidence in a criminal action on the grounds that it was obtained in violation of any statutory provision.” The Court notes that there is a difference between “judicially created exclusions of evidence based on the violation of a statute and existing, legislatively enacted statutory provisions defining the extent to which evidence must be excluded.” The Court states that ORS 136.432 “was intended to preclude courts from creating new rules of exclusion and not to repeal existing statutory rules of exclusion.” The Court states that ORS 813.135 and ORS 813.136 “implement a legislative determination that a driver’s refusal to perform FSTs is not admissible under ORS 813.136 unless that person was advised, as prescribed by ORS 813.135, of the consequences of refusal.” The Court held that the trial court erred in admitting evidence of Eskie’s refusal, that this error was not harmless, and reversed the trial courts decision.