State v. Lile, 341 P.3d 162

Corporal Wood arrested defendant for DUII and reckless driving and transported him to jail, advised him of implied-consent rights, and began the observation period required before a breath test.
Defendant asked to call his attorney (Gardner); Wood provided an attorney list and read Gardner’s number; a jail staffer told defendant Gardner was in court.
Defendant phoned Gardner’s office and spoke with Gardner’s receptionist while Wood stood 5–10 feet away and remained within earshot.
After the call, defendant submitted two breath samples that exceeded the legal BAC limit; the state charged him with DUII and reckless driving.
Defendant moved to suppress the Intoxilyzer results, arguing Wood’s presence within earshot violated Article I, § 11 (right to a reasonable opportunity to consult counsel privately); the trial court denied the motion, and the jury convicted.
On appeal the court reversed, holding the officer’s presence while defendant spoke with the attorney’s receptionist violated the constitutional right to a private consultation and required suppression of the breath-test results; the error was not harmless.

Issue	State's Argument	Defendant's Argument	Held
Whether an arrestee has a right to a private consultation with an attorney’s representative (e.g., receptionist) before deciding to take a breath test	Right to consult counsel does not extend to a private conversation with an attorney’s representative because the receptionist cannot give legal advice	Right to a private consultation includes communications with an attorney’s representative who may relay confidential information to the lawyer	Court held Article I, § 11’s right to counsel includes privacy when communicating with an attorney through the attorney’s representative; officer’s presence within earshot violated the right
Whether admitting breath-test results was harmless error	Admission harmless because other evidence of intoxication existed	Erroneous admission of qualitatively different breath-test evidence likely affected the verdict	Court held the error was not harmless and reversed and remanded

State v. Spencer, 305 Or 59 (1988) (arraigned DUII suspect has right to a reasonable opportunity to consult counsel before a breath test)
State v. Durbin, 335 Or 183 (2003) (officer within earshot during counsel consultation presumed to chill confidential communication; suppression required)
State v. Matviyenko, 212 Or App 125 (2007) (officer must inform arrestee if privacy will be afforded when remaining in the room; failure to honor implicit request for confidentiality requires suppression)
State v. Carlson, 225 Or App 9 (2008) (state bears burden to prove arrestee was afforded a reasonable opportunity to consult counsel)