State v. Battenberg

In this criminal case, defendant is charged with driving under the influence of intoxicants (DUII). The state appeals, pursuant to ORS 138.060(3), from a pretrial order of the district court suppressing evidence of defendant’s refusal to take a breath test. We affirm.

On October 12, 1979, at about 11:10 p.m., Trooper Gibson of the Oregon State Police arrested defendant for DUII. According to Gibson, defendant appeared to be “intoxicated,” as demonstrated by his erratic driving and his poor performance on field sobriety tests. After arresting defendant, Gibson advised him of his rights, but…