concurring.
I agree that the trial court should be affirmed, but on a narrower basis than the majority states.
The only evidentiary issue presented on appeal was whether the arresting officer’s testimony that he had informed defendant of the consequences of refusing to take *292the breath test, and his description of those consequences, was relevant. OEC 401; OEC 402. Defendant did not argue on appeal that that testimony should have been excluded under OEC 403 because its probative value was “substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay or needless presentation of cumulative evidence.”
I believe that the relevance of the officer’s testimony is beyond dispute. Defendant’s refusal to take the breath test, notwithstanding her knowledge that such a refusal would automatically result in a lengthy license suspension, had a ‘ ‘tendency to make the existence” of a material fact — i. e., the fact of defendant’s intoxication — “more probable * * * than it would [have been] without the evidence.” OEC 401. However, the issue of whether such testimony may, either generally or in any particular case, run afoul of OEC 403 is much closer. That question is not presented here, and should not be foreclosed by our decision.1
Unlike the majority, I do not believe that City of Portland v. Stanley, 53 Or App 254, 631 P2d 826, rev den 291 Or 771 (1981), sanctions blanket admissibility of such evidence. In Stanley, the only issue was whether either the admission of evidence that defendant had refused to take a breathalyzer test, after having been informed of the consequences of that refusal, or the prosecutor’s subsequent comment on that evidence as supporting an inference of guilt violated the defendant’s constitutional right against self-incrimination. Id. at 256. Thus, we decided neither the general relevance of such evidence, nor its admissibility under OEC 403.