Held: Defendant’s refusal to submit to a breath test was not admissible to prove intoxication. Remanded for new trial. One way or another, the government will find a way to circumvent this ruling (for example, by finding another legal basis for admissibility or by changing the law).
See also State v. Coen, 203 Or. App. 92 (2005), which states:
“In his second assignment of error, defendant argues, among other things, that the results of the chemical analysis should have been suppressed under Article I, section 9, of the Oregon Constitution.
Defendant asserts that, although he consented to give the blood and urine samples, his consent was the product of an illegal threat and was therefore involuntary. See State v. Powelson, 154 Or.App. 266, 274-75,
961 P.2d 869 (1998) (where officers told the defendant that he could either consent to a search or be detained and threat to detain was unlawful, the defendant’s ensuing consent was not voluntary).”
According to Ryan Scott: “It does appear that pre-Banks (and probably still at this moment), defendants are threatened with their refusal being used as against them in court. In light of Banks, that would be an illegal threat.”