State v. Swan, 420 P.3d 9

Background

Officer Enz responded to a 3:00 a.m. crash, observed signs of intoxication, and arrested defendant for DUII; defendant invoked his right to counsel at the scene.
Officer allowed defendant to make phone calls at the precinct (multiple opportunities to consult counsel) but then administered a 28-question DUII interview after defendant again invoked his Article I, section 12 Miranda-based right to counsel.
The officer then read the Implied Consent Combined Report and asked if defendant would take a breath test; defendant requested counsel again, was refused, then agreed and registered a .18 BAC.
The State conceded the post-invocation questioning violated Article I, section 12 but argued suppression of the questions/answers alone sufficed; the trial court denied suppression of the breath-test and results under Article I, section 11 and the implied-consent scheme.
The Court of Appeals affirmed, treating the officer’s breath-test request as non-interrogative and finding the test result attenuated from the Miranda violation; the Oregon Supreme Court granted review.
The Supreme Court held the breath-test decision and results derived from the immediately preceding Article I, section 12 violation and must be suppressed, reversing convictions and remanding.

Issues

Issue	Defendant's Argument	State's Argument	Held
Whether asking a DUII arrestee to submit to a breath test after invocation is "interrogation" under Article I, §12	Asking to take a breath test is interrogation and thus prohibited after invocation	Court of Appeals and State: asking to take a breath test is normally attendant to custody and not "interrogation"	Court did not need to decide; disposition rests on attenuation rule — question preserved uncertain; result unchanged because attenuation failed
Whether defendant's voluntary consent to the breath test attenuated the causal chain from the prior Article I, §12 violation	Defendant: consent and test results were product of the immediately preceding Miranda violation and must be suppressed	State: consent was voluntary and attenuation factors (reading form, prior phone calls) break causal link; alternatively implied consent/statutory duty removes significance of involuntariness	Held for defendant: no break in time/place/custody; violation was flagrant; State failed to prove attenuation — suppress breath-test results
Whether implied-consent statutes independently authorize admissible breath-test evidence despite constitutional taint	Defendant: statutory implied consent does not cure a constitutional violation producing the decision to submit	State: implied consent means driver has no legal right to refuse; exclusion would overcorrect because statute supplies independent basis for test	Held for defendant: statutory text and precedent (Spencer) show suspect retains a statutory choice at arrest; implied consent does not overcome constitutional suppression when decision derives from constitutional violation
Proper remedy for Article I, §12 violation producing derivative physical evidence	Defendant: suppress derivative breath-test results to restore position absent violation	State: suppression overcorrects; officer acted within statutory/implied-consent scheme	Held for defendant: suppression required; restoring constitutional rights may foreclose the State’s statutory benefit when evidence is product of violation

Key Cases Cited

State v. Jarnagin, 351 Or. 703 (Or. 2012) (sets attenuation factors for determining whether later evidence derives from an earlier Miranda violation)
State v. Delong, 357 Or. 365 (Or. 2015) (applies Jarnagin factors; examines when later consent attenuates prior Miranda error)
State v. Spencer, 305 Or. 59 (Or. 1988) (DUII: pretrial Article I, §11 right to counsel before breath test and suppression when decision derives from that violation)
State v. Durbin, 335 Or. 183 (Or. 2003) (discusses scope of pretrial Article I, §11 counsel right in DUII contexts)
State v. Vondehn, 348 Or. 462 (Or. 2010) (suppresses evidence when State does not rebut that evidence derived from Miranda violation)
State v. Unger, 356 Or. 59 (Or. 2014) (analysis of flagrancy and effect of in-custody questioning on consent decisions)
State v. Moore, 354 Or. 493 (Or. 2013) (advising a suspect of consequences of refusal does not by itself render decision involuntary)
State v. Cabanilla, 351 Or. 622 (Or. 2012) (interprets statutory meaning of "informed" in implied-consent warnings; distinguishes statutory notice issues from constitutional attenuation questions)
Edwards v. Arizona, 451 U.S. 477 (U.S. 1981) (Miranda rule: after assertion of right to counsel, police must cease interrogation until counsel is present)