¶1 The State charged Appellee Ramon Ambrose Armstrong, in the District Court of Comanche County, Case No. CF-2020-447, with Driving a Motor Vehicle While Under the Influence of Alcohol Second and Subsequent (Count 1), in violation of 47 O.S.Supp.2018, § 11-902(A)(1), Prisoner Placing Bodily Fluids on Government Employee (Count 2), in violation of 21 O.S.2011, § 650.9, and Unsafe Lane Use (Count 3), in violation of 47 O.S.Supp.2018, § 11-309. The Honorable Grant Sheperd, District Judge, presided over Armstrong's jury trial. The jury acquitted Armstrong on each count.

¶2 Before the Court is a state appeal on reserved questions of law. See 22 O.S.Supp.2022, § 1053(3). The questions presented in this appeal are:

(1) whether 47 O.S.Supp.2017, § 756 specifically allows the State to introduce a defendant's refusal to take the State's breath test and to argue to the jury that it is evidence of intoxication, is it error for the trial court to prohibit the State from presenting this evidence to the jury unless a defendant first takes the stand; and

(2) whether Armstrong's refusal to take the State's breath test was a refusal pursuant to 47 O.S.Supp.2017, § 756 and after Armstrong put into evidence both the implied consent test form and the refusal form, should the trial court have instructed the jury pursuant to Instruction No. 9-47, OUJI-CR(2d) (Supp.2008).

BACKGROUND

¶3 This case arises out of a traffic stop initiated by a Lawton police officer, on August 29, 2020, upon the officer's suspicion that the driver, Ramon Armstrong, was intoxicated. The officer who initiated the stop observed the vehicle weaving between and crossing over the lines on the road. Once stopped, the officer made contact with Armstrong and noticed that his breath smelled of alcohol and that he had watery eyes and slurred speech. The officer administered standard field sobriety tests and observed six out of six clues for Horizontal Gaze Nystagmus, six out of eight clues for walk and turn, and one out of four clues for one leg stand. The officer then placed Armstrong under arrest for driving under the influence. The officer asked, under the Implied Consent Test Request, that Armstrong submit to a breath test. Armstrong refused the test.

¶4 Prior to trial, Armstrong filed a motion in limine seeking to prohibit the introduction of evidence relating to the field sobriety tests and evidence relating to his refusal of a breath alcohol test. This was, in part, treated as a request to keep the jury from hearing that he refused to take a breath alcohol test. In a written response, the State argued that evidence of a defendant's refusal to take a breath alcohol test is admissible under 47 O.S.Supp.2017, § 756(A).

¶5 At a motion hearing held on August 29, 2023, defense counsel argued against the relevancy of the evidence that Armstrong refused the breath alcohol test and expressed concern that the State be precluded from arguing that such refusal be deemed a "presumption" of intoxication. The trial court, in a Court Order, granted the motion in part and denied it in part. The court ruled that, "[t]he State is allowed to provide testimony regarding Defendant's refusal to take the test but is forbidden from making any inference or allusion to the fact of [sic] Defendant's refusal to test means Defendant was intoxicated."

¶6 Immediately prior to trial on September 25, 2023, the trial court revisited the motion in limine in light of Instruction No. 9-47, OUJI-CR(2d) (Supp.2008) which is a limiting instruction regarding a defendant's refusal to take a blood alcohol test. Defense counsel argued that Instruction No. 9-47, OUJI-CR(2d) (Supp.2008) is not applicable as it deals specifically with blood alcohol tests and not breath alcohol tests. He asserted that if the drafters of the jury instructions had intended that breath alcohol tests be treated the same as blood alcohol tests, they would have explicitly included it in the jury instruction. The trial court ruled that the State could introduce evidence that Armstrong refused the breath alcohol test, but it could not argue that such refusal was evidence of consciousness of guilt unless Armstrong testified at trial and was subject to cross-examination on the issue. Accordingly, the trial court went on to deny the State's request that the jury be given Instruction No. 9-47, OUJI-CR(2d) (Supp.2008).

1.

¶7 Resolution of the issue before this Court turns on the interpretation of 47 O.S.Supp.2017, § 756(A). This Court reviews matters of statutory interpretation de novo. Washburne v. State, 2024 OK CR 9, ¶ 8, 548 P.3d 786, 789. In interpreting statutory provisions, we look first at the plain meaning of the statutory language. State v. Breznai, 2022 OK CR 17, ¶ 14, 516 P.3d 686, 689. "'A statute should be given a construction according to the fair import of its words taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.'" Haliburton v. State, 2024 OK CR 7, ¶ 8, 546 P.3d 895, 897 (quoting Jordan v. State, 1988 OK CR 227, ¶ 4, 763 P.2d 130, 131). We must avoid any construction which would make any part of the statute superfluous or useless. State v. Green, 2020 OK CR 18, ¶ 8, 474 P.3d 886, 890.

¶8 Title 47 O.S.Supp.2017, § 756(A) provides as follows:

Upon the trial of any criminal action or proceeding arising out of acts alleged to have been committed by any person while driving or in actual physical control of a motor vehicle while under the influence of alcohol or any other intoxicating substance, or the combined influence of alcohol and any other intoxicating substance, evidence of the alcohol concentration in the blood or breath of the person as shown by analysis of the blood or breath of the person performed in accordance with the provisions of Sections 752 and 759 of this title or evidence of the presence or concentration of any other intoxicating substance as shown by analysis of such person's blood, breath, saliva, or urine specimens in accordance with the provisions of Sections 752 and 759 of this title is admissible. Evidence that the person has refused to submit to either of said analyses is also admissible.

(Emphasis added).

¶9 In keeping with the plain language of this statute, this Court previously found that evidence of one's refusal to take a sobriety test is admissible under Section 756. State v. Neasbitt, 1987 OK CR 55, ¶ 6, 735 P.2d 337, 338. Additionally, in Harris v. State, 1989 OK CR 15, ¶ 7, 773 P.2d 1273, 1274 this Court clarified that:

[Section] 756, which allows admission of evidence of one's refusal to take a sobriety test, meets constitutional muster according to both the Oklahoma and United States constitutions. It is a lawful penalty to use evidence that a driver refused such a sobriety test. It is not an act coerced, and is not protected by the privilege against self-incrimination.

In so holding, this Court noted additionally that the United States Supreme Court has held that, "'we do not think it fundamentally unfair . . . to use the refusal to take the test as evidence of guilt, even though [the defendant] was not specifically warned that his refusal could be used against him.'" Harris, 1989 OK CR 15, ¶ 7, 773 P.2d at 1274 (quoting South Dakota v. Neville, 459 U.S. 553, 565 (1983)). See also Pennsylvania v. Muniz, 496 U.S. 582, 604 n.19 (1990) ("We see no reason to distinguish between chemical blood tests and breathalyzer tests for these purposes.").

¶10 Thus, it is clear that under Section 756, evidence of an individual's refusal to take a breath test is admissible at trial. We also find, based upon the above noted precedent, that the refusal to submit to a breath test may be considered by the trier of fact as evidence of guilt. Furthermore, the plain language of Section 756 does not require that a defendant take the stand and testify before this evidence is admitted.

2.

¶11 As noted above in the recitation of the facts, the prosecutor requested that the jury be given Instruction No. 9-47, OUJI-CR(2d) (Supp.2008).¹ The trial court denied this request because this jury instruction deals specifically with blood alcohol tests and does not mention breath alcohol tests.

¶12 A review of the Notes on Use and Committee Comments to Instruction No. 9-47, OUJI-CR(2d) (Supp.2008) shows that the instruction was adopted almost verbatim from a limiting instruction proposed by Judge Lumpkin in his specially concurring opinion to Harris, 1989 OK CR 15, ¶¶ 8-9, 773 P.2d at 1277-78 (Lumpkin, J., Specially Concurring). The proposed limiting instruction did, in fact, only mention blood alcohol. The first sentence of the proposed limiting instruction stated: "Evidence has been introduced of the Defendant's refusal to take a test to determine the blood alcohol level in his/her body at the time of his/her arrest." Harris, 1989 OK CR 15, ¶ 9, 773 P.2d at 1278 (Lumpkin, J., Specially Concurring). However, when taken in context, it appears that the Jury Instruction Committee's reading of Judge Lumpkin's special opinion to apply only to blood alcohol tests was arguably more narrowly construed than was intended. Judge Lumpkin was writing to a case concerning the admissibility of evidence that the defendant refused a breath alcohol test, not a blood alcohol test. A review of the special writing shows that immediately before setting forth the proposed language, Judge Lumpkin specifically stated that his reason for proposing the limiting instruction was so that the "admissibility of the refusal of a defendant to take a blood alcohol or breathalyzer test be limited." Harris, 1989 OK CR 15, ¶ 9, 773 P.2d at 1277 (Lumpkin, J., Specially Concurring) (emphasis added). In keeping with its intended purpose, we clarify here that Instruction No. 9-47, OUJI-CR(2d) (Supp.2008) is a limiting instruction applicable to cases where a defendant has refused either blood alcohol tests or breath alcohol tests. This jury instruction should be amended to reflect the same.

ANSWER

¶13 For the reasons discussed above, we find that the State was properly allowed to introduce evidence of Armstrong's refusal to submit to a breath test under 47 O.S.Supp.2017, § 756(A). We find that the introduction of this evidence was not conditioned upon Armstrong first testifying at trial and that, subject to the limiting instruction, Instruction No. 9-47, OUJI-CR(2d) (Supp.2008), evidence of Armstrong's refusal to take the breath test is a circumstance which, along with all the other evidence in this case, could be considered by the jury in determining the question of Armstrong's guilt.

DECISION

 

APPEARANCES AT TRIAL	APPEARANCES ON APPEAL
CLAY ZELBST ZELBST, HOLMES, & BUTLER 411 SE 6TH STREET LAWTON, OK 73501 ATTORNEY FOR DEFENDANT	KYLE CABELKA DISTRICT ATTORNEY JOHN S. ROOSE ASST. DISTRICT ATTORNEY COMANCHE COUNTY DISTRICT ATTORNEY'S OFFICE 315 S.W. 5TH ST., ROOM 504 LAWTON, OK 73501 ATTORNEYS FOR STATE
JOHN S. ROOSE ASST. DISTRICT ATTORNEY COMANCHE COUNTY DISTRICT ATTORNEY'S OFFICE 315 S.W. 5TH ST., ROOM 504 LAWTON, OK 73501 ATTORNEY FOR STATE