2016 Ore. App. LEXIS 946
Multnomah Cty. Cir. Ct., O.R.2016Background
- Defendant arrested for DUII, taken to police for observation before an Intoxilyzer breath test; he requested to speak with an attorney.
- Deputy returned defendant’s cell phone and a phone book and remained in the same small room, saying he would leave once defendant reached an attorney.
- Defendant called an attorney’s office, spoke with the receptionist about his situation, and was placed on hold to reach the lawyer while the deputy remained within earshot.
- The deputy warned that phone time was limited and ultimately took the phone before defendant reached the attorney.
- Defendant then consented to the breath test; results were admitted at trial and he was convicted of misdemeanor DUII.
- On appeal, defendant argued deputies violated his Article I, §11 right to counsel/privacy by remaining in the room during his call; the court reviewed whether that right was denied and whether suppression of breath-test results was required.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether deputy’s presence violated right to counsel/privacy during call to attorney’s office | State: deputy didn’t know defendant reached an attorney and had told defendant he would leave the room upon contact; no violation without notice | Defendant: request to consult with counsel includes right to private communications with counsel and counsel’s representative; officer must afford privacy | Court held officer’s remaining within earshot during call to receptionist violated Article I, §11; privacy extends to attorney’s representative |
| Whether officer’s presence must actually chill speech to justify suppression | State: no evidence defendant’s call was chilled; receptionist may be nonlawyer service | Defendant: presence presumed to chill confidential communications with attorney’s rep | Court held presence presumed to chill; state failed to rebut presumption; breath-test results must be suppressed |
| Whether advice about when privacy would be afforded affects state’s burden | State: advising defendant privacy would be provided once he reached an attorney negates violation unless defendant failed to say he reached an attorney | Defendant: placing burden on arrestee to repeat request is improper | Court: did not decide the broader question but rejected state’s reliance on that point because defendant was told privacy extended only to conversations with an attorney (not receptionist) |
| Whether implied-consent warning rendered consent involuntary | State: Moore controls that warning is not an impermissible threat | Defendant: Moore wrongly decided | Court: rejected challenge, noting Moore controls and decline to revisit it |
Key Cases Cited
- State v. Spencer, 305 Or. 59 (Oregon 1988) (Article I, §11 gives arrested DUII drivers a reasonable opportunity to consult counsel before breath test)
- State v. Durbin, 335 Or. 183 (Oregon 2003) (right to counsel includes right to private consultation; no separate request for privacy required)
- State v. Lile, 267 Or. App. 712 (Or. Ct. App. 2014) (privacy right extends to communications through attorney’s representative; officer within earshot violates right)
- State v. Matviyenko, 212 Or. App. 125 (Or. Ct. App. 2007) (officer may remain until contact but must inform arrestee beforehand if planning to do so)
- State v. Moore, 354 Or. 493 (Oregon 2013) (implied-consent warning does not render consent to testing involuntary)