344 P.3d 140
Or. Ct. App.2015Background
- Defendant found unresponsive behind the wheel with engine running; officer revived him and observed signs of intoxication.
- Defendant arrested, read Miranda rights, and taken to station; he asked to call parents and later asked to contact an attorney.
- Officer Thorsen provided phone access, left defendant alone; defendant fell asleep, was later awakened and interviewed after again being advised of Miranda rights.
- During the interview defendant denied remembering driving and denied alcohol/drug use but admitted owning the car and not being diabetic or on medication.
- Defendant consented to a breath test after rights-and-consequences advisement; BAC = 0.14%.
- At trial defendant moved to suppress interview statements as taken after invocation of right to counsel; trial court denied suppression and refused a jury instruction on "voluntary act." Defendant appealed.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Martinez) | Held |
|---|---|---|---|
| Whether defendant’s request to contact an attorney was an invocation requiring cessation of questioning | Request was equivocal; officer reasonably understood defendant did not invoke right to counsel and defendant later waived by answering | Statement was an unequivocal request for counsel or at least required clarifying inquiry; questioning after that violated rights | Any error in admitting statements was harmless; no need to decide invocation question |
| Whether trial court erred by refusing voluntary-act jury instruction | No factual predicate showed unconscious action; elements instruction for DUII sufficed | DUII requires proof of a voluntary act; instruction was necessary to present defendant’s theory (e.g., unconsciousness) | Trial court did not err: no competent evidence supported giving the voluntary-act instruction |
Key Cases Cited
- State v. Ehly, 317 Or. 66 (standard of review for suppression findings)
- State v. Newman, 353 Or. 632 (voluntary-act requirement applies to driving element of DUII)
- State v. Miller, 309 Or. 362 (DUII intoxication element requires no culpable mental state)
- State v. Davis, 336 Or. 19 (Oregon harmless-error test: ask whether error likely affected verdict)
- State v. Harding, 221 Or. App. 294 (test for whether a statement is an unequivocal invocation of rights)