State v. Cadmus

VAN HOOMISSEN, J. Defendant was charged with driving under the influence of intoxicants. ORS 487.540. He appeals from a trial court order denying his motion to suppress evidence of statements he made to a police officer. The state concedes that this case is factually similar to State v. Taylor, 59 Or App 396, 650 P2d 1090 (1982), which we find controlling. We conclude that it was reversible error to deny defendant’s motion to suppress his statements to the police officer. Defendant also assigns as error the trial court’s denial of his motion to suppress evidence of his refusal to submit to a breath test. He contends that, before he refused the test, his request to make a telephone call was denied. He argues that “introduction of such evidence violates [his] constitutional right against self-incrimination and is an unnecessary restriction upon his personal liberty.” The record does not reveal whom defendant wished to call. At no time did he specifically ask to call a lawyer. In State v. Newton, 291 Or 788, 809, 636 P2d 393 (1981), the Supreme Court held that exclusion of evidence of defendant’s breathalyzer test was not required when the record did not establish a causal relationship between his unfulfilled request to call a lawyer and the obtaining of the breath sample. Similarly, the record here reveals no relationship between defendant’s request to make a telephone call and his refusal to take the breath test. We find no merit in defendant’s due process claim. As to defendant’s self-incrimination claim, in South Dakota v. Neville, 459 US 553, 103 S Ct 916, 74 L Ed 2d 748 (1983), the United States Supreme Court held that the admission in evidence of the defendant’s refusal to submit to a blood-alcohol test did not violate the Fifth Amendment privilege against self-incrimination because the refusal to take the test, after lawfully requested, was not a coerced act. Accord, State v. Gardner, 52 Or App 663, 668-89, 629 P2d 412, rev den 291 Or 419 (1981). We conclude that the trial court properly denied defendant’s motion to suppress evidence of his refusal to take the breath test. Reversed and remanded.