But then.. this happens:
Notwithstanding our agreement with the state's primary argument -- that the
officer's reading of the statutory rights and consequences of refusing to submit to the tests
was not necessarily coercive -- our inquiry is not at an end. Before this court, defendant
does not seriously contend that a statement of the lawful consequences of refusal is
unconstitutionally coercive. Rather, defendant's primary argument is that the implied
consent warnings include at least one consequence of refusal that is not lawful, at least
not in all circumstances, because it is unconstitutional. Defendant argues that, whatever
the implied consent statute may say about the matter, a driver has the constitutional right
to refuse to consent to a seizure of his bodily fluids under Article I, section 9, of the
Oregon Constitution and, as a matter of constitutional law, the assertion of a
constitutional right may not be used as substantive evidence of guilt. That is, defendant
argues, a person may not be put in a position where the only options are to produce
physical evidence when he or she has the constitutional right not to produce that evidence
or to refuse the request and have the refusal be used against him or her as evidence of
Let's fast forward to where the Court appears ridiculous:
Farrar's statement to defendant differs from the terms of ORS 813.310 --
the statute that defendant argues is unconstitutional in some circumstances -- in several
important respects. First, it does not convey certainty that evidence of refusal will be
used against a driver. Rather, it informs the driver that the evidence "may" be offered.
Second, it does not inform the driver that the refusal will be admissible; rather, it states
only that such evidence may be offered. Third, it does not refer to a criminal action, or,
indeed, any particular type of action at all. The statement actually read to defendant thus
does not express or imply that evidence of his refusal will be used or can be used as
substantive evidence against him in a criminal proceeding -- only that it "may be offered
against [him]." Moreover, it is incontrovertible that a driver's refusal to submit to
chemical tests lawfully may be used against him or her in at least two non-criminal
proceedings. Under ORS 813.410, a driver who receives notice that his or her driving
privileges will be suspended based on the refusal or failure to submit to chemical tests for
intoxication has a right to an administrative hearing on the validity of the suspension.
The driver's refusal to submit to the tests is relevant evidence to prove the validity of the
suspension and, thus, lawfully could be offered against him or her at that hearing.
Additionally, under ORS 813.095, the refusal to consent to a chemical test is a specific
fine traffic violation. If the driver chooses to contest the violation, the refusal would be
admissible in the ensuing proceeding.
It follows that advice that evidence of the refusal or failure "may be offered
against you" is a true statement, and it advises of a consequence that the constitution does
not forbid in at least two situations. That statement was not coercive. Defendant has not
objected to the legality of any of the other consequences that would flow from a refusal to
submit to the tests, nor has he argued that Farrar's statements to him regarding any of
them were coercive in any particular respect.
So there you have it. They argued semantics. Really, really stupid semantics. On this basis, your Fourth Amendment dies.
Because when it comes to DUIs and the breathalyzer industry, science and the Bill of Rights, not to mention logic, are all dead.