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Oregon Appellate Court Says No To Courtroom DUI Test
Motorists do not need to submit to field sobriety tests inside the courtroom, Oregon Court of Appeals rules.

Nystagmus test
There is nothing surprising about a motorist pulled to the side of the road being told he has no right to refuse testing when suspected of driving under the influence of alcohol (DUI). Oregon's Court of Appeals considered a rather unique twist on this scenario last week as a driver was told she had absolutely no right to refuse a DUI test in front of a jury in a courtroom.

Christine Ann McCrary had been stopped for allegedly running a red light just before pulling into a grocery store parking lot. Officer Powell drove up, confronted her and ordered her to perform the standard field sobriety tests. This included the horizontal gaze nystagmus test in which a pen is held about a foot away and McCrary was asked to track its movement without turning her head. Her performance was inadequate, so she was arrested. A breathalyzer estimated her blood alcohol content at 0.12, well above the 0.08 legal maximum.

At trial, McCrary challenged the validity of the field testing. Officer Powell admitted that some people react to the nystagmus, or involuntary eye movement, test while they are completely sober. Powell said he tested McCrary to see if she had any natural eye movement by watching her eyes at rest, but did not record any observations in his notes. So prosecutors asked the officer to test McCrary in the courtroom during the trial. McCrary's lawyer immediately objected, but Yamhill County Circuit Court Judge John L. Collins overruled and said the defendant had no choice.

"Defendant doesn't have a constitutional right not to participate because it is not testimonial evidence," Judge Collins said in front of the jury. "However, I am not going to force her to participate in the evaluation."

McCrary appealed her conviction, arguing that the forced choice to consent or refuse a test in front of the jury amounted to a violation of her state constitutional right against being compelled to testify against herself. The three-judge appellate panel agreed, pointing to precedent that finds field sobriety tests are a search.

"Insofar as this search was to be imposed upon defendant without a warrant or without an exception to the warrant requirement, the search would have been unconstitutional," Judge Joel S. DeVore wrote for the Court of Appeals. "Having concluded that this test would constitute an unlawful search, we must also conclude that the court erred by advising the jury that defendant had no right to refuse to cooperate in the examination. The midtrial instruction was mistaken."

The appellate court found the error was not harmless insofar as the court has no idea of knowing which particular facts persuaded the jury to enter a guilty verdict. McCrary's conviction was reversed.

A copy of the opinion is available in a 40k PDF file at the source link below.

Source: PDF File Oregon v. McCrary (Court of Appeals, State of Oregon, 10/22/2014)

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