Opinion
CRO-0357-16; CA A67389
Argued and submitted August 29, 1991
Reversed and remanded September 16, 1992 Reconsideration denied November 18, 1992 Petition for review pending 1993
Appeal from District Court, Crook County.
George Nielson, Judge.
Jas. Adams, Assistant Attorney General, Salem, argued the cause for appellant. With him on the brief were Dave Frohnmayer, Attorney General, and Virginia L. Linder, Solicitor General, Salem.
John P. Daugirda, Eugene, argued the cause for respondent. With him on the brief was Roost Daugirda, Eugene.
Before Buttler, Presiding Judge, and Rossman and De Muniz, Judges.
PER CURIAM
Reversed and remanded.
The state appeals an order, ORS 138.060(3), granting defendant's motion to suppress the results of field sobriety and breath tests in this driving under the influence of intoxicants case. We reverse and remand.
Officer Chapman, suspecting that defendant was driving under the influence of intoxicants, stopped him. The officer asked defendant to perform field sobriety tests, but did not warn him of the consequences of refusal. Defendant performed the tests anyway. On the basis of his performance, the officer concluded that he was under the influence of intoxicants and arrested him. Defendant took a breath test after his arrest.
In State v. Trenary, 114 Or. App. 608, 836 P.2d 739 (1992), we held that the advice of consequences is intended to encourage a driver to take the field sobriety tests and is not a precondition to giving the tests. The officer properly relied on the results in forming his decision to arrest defendant. The trial court erred by granting defendant's motion to suppress the results of the field sobriety and breath tests.
Reversed and remanded.