State v. Miller

TANZER, J.,

specially concurring.

The majority opinion reaches the correct result, but, in my view, does so by a fallacious reliance on State v. Hilditch, 36 Or App 435, 584 P2d 376 (1978). This is the inconsistency: (1) the rule of Hilditch is that where police action precludes defendant’s exercise of his statutory right to an independent test, there has not been statutory compliance in the taking of the breathalyzer test and the results thereof are inadmissible; (2) the trial court found, supported by evidence, that defendant wished to obtain an independent test, but was prevented from doing so by his reliance on police action. Logically, then, the breathalyzer result should be suppressed. Illogically, however, it is not ordered suppressed. Instead, the majority cites Hilditch and tiptoes away from it.

We should either follow Hilditch or overrule it. I would overrule it because I believe it to be inconsistent with the statutory scheme regulating breathalyzer evidence.

The issue in this case is whether the breathalyzer test result should be excluded. The issue is not whether the police conduct after the test was proper. We are called upon to apply an exclusionary rule.

I begin with the proposition that the fact-finding process should not be hindered by rules excluding probative evidence unless an extraordinarily high societal objective requires exclusion. Hence, exclusion is normally restricted to the effectuation of constitutional rights and only rarely to enforce statutory rights. See State v. Valdez, 277 Or 621, 561 P2d 1006 (1977).

In Hilditch, we created an exclusionary rule of statutory origin, however the statutes which Hilditch purports to effectuate contain a directive that they not be enforced by an exclusionary rule. ORS 487.810 provides:

"* * * The failure or inability to obtain such a test or tests by a person shall not preclude the admission of evidence relating to a test taken upon the request of a police officer.”

It is clear that the statute provides no basis for a rule of exclusion of otherwise competent, probative evidence.

A trial court reading Hilditch and reading this case would have a hard time discerning what it is to do. I would overrule Hilditch and clear the air.