State v. GreenState v. Green
In this аppeal from a judgment of conviction for driving under the influence of intoxicants (DUII), ORS 813.010, defendant assigns error to the trial court’s denial of his motion to suppress the results of the Intoxilyzer breath test. The issue is whether sheriffs deputies denied defendant the right to consult with counsel before he consented to take the test by remaining in the room while defendant spoke to the receptionist for an attorney or by terminating defendаnt’s call while defendant remained on hold for the attorney. The trial court accepted defendant’s description of events at the police station but denied the motion to suppress. The state then tried its case to the jury, which found defendant guilty of misdemeanor DUII. We conclude that defendant was denied the right to counsel guaranteed by Article I, section 11, of the Oregon Constitution when deputies remained within earshot during his conversation with the attorney’s receptionist. We, therefore, reverse and remand without addressing defendant’s argument that the officers afforded defendant too little time to reach the lawyer.
BACKGROUND
The material facts are not in dispute. Defendant was arrested for DUII and taken to the Gresham police department, where a sheriffs deputy began an observation period prior to administering the Intoxilyzеr breath test. Defendant asked to speak with an attorney, so the deputy returned defendant’s cell phone and provided a phone book. The deputy remained in the “same small room with him the whole time, mоving around, trying to work on paperwork getting ready for the [breath test].” But the deputy advised defendant that he could have privacy once he reached a lawyer.
Defendant first called his girlfriend to ask her tо look up attorney numbers on the internet and then called a number that she found. Defendant reached a receptionist for the attorney, answered her questions about his situation and the purpose of his сall and then waited on hold to speak to the attorney.
While defendant remained waiting on hold to speak to the attornеy, the deputy gave several warnings that defendant’s phone time was running out and ultimately took the phone before defendant was able to speak to the attorney. Defendant then consented to the breath test, and the state relied on the results at trial.
DISCUSSION
The right to counsel guaranteed by Article I, section 11, of the Oregon Constitution includes the right of a driver arrested for DUII to a reasonable opportunity to cоnsult with counsel, upon request,
We begin, and end, our analysis with defendant’s argument that the deputy denied him the right to counsel by remaining in close proximity during defendant’s conversation with the attorney’s receptionist. Inhеrent in the right to counsel is “the right to confer privately with counsel.” State v. Durbin,
Defendant relied on Durbin to support his argument in the trial court that he was denied the opportunity for private conversation. In rejecting that argument, the trial court reasoned that the right to consult privately did not extend to defendant’s conversation with the attorney’s receptionist:
“The fact that the reception for the lawyer’s office, the receptionist, whoever that might have been, thоught it was important to ask questions, under circumstances were probably foolish to ask, doesn’t require that the unknown receptionist be regarded as being a lawyer or that the State’s representative is required to intuit that he has a desire — that he’s reached someone that he wants to talk to, to relay information to a lawyer and he wants to do that in privacy, where he’s been informed that he had a right to privaсy when he reaches the attorney.”
We have since rejected the distinction that the trial court drew between an attorney and the attorney’s receptionist. Lile,
After the parties completed the briеfing in this case, we held in Lile that “the right to counsel under Article I, section 11, includes the right to privacy when communicating with an attorney, through the attorney’s representative.”
Although neither party filed a memorandum of additional authorities to discuss Lile, the state argues that defendant’s right to counsel was not violated because the deputy advised that he would leave the room when defendant reached an attorney and did not know that defendant had reached anyone associated with an attorney’s office. Indeed, the state insists that “defendant’s position is untenable because, as he acknowledges, defendant never informed the deputy that he had reached someone associated with an attorney’s officе.” Defendant responds that the state’s approach improperly places the “onus” on the arrestee to repeat a request for private consultation after having already requestеd privacy as an inherent component of the request to consult with counsel.
The state’s argument relies on State v. Matviyenko,
The state also argues thаt the breath test results should not be suppressed because there is no evidence that defendant’s right to contact an attorney was “chilled” by the officer’s presence while defendant spoke with the аttorney’s representative. As we explained in Lile, that argument “misses the point; the receptionist was the means through which defendant could confidentially communicate with, and obtain legal advice from, his attоrney.”
Reversed and remanded.
Notes
We reject without further discussion defendant’s challenge to thе trial court’s denial of a second motion to suppress, in which defendant argues that his consent to the breath test was involuntary because the “implied consent warning” conveys an impermissible threat. Defendаnt recognizes that the Supreme Court has held otherwise, State v. Moore,
The state asserts in its brief on appeal that, “assuming that defendant actually was on hоld with anyone, it is not clear that that was not some generic answering service.” In the trial court, however, the state did not dispute that defendant called an attorney’s office and reached a reprеsentative of the attorney, with whom defendant communicated about his need for legal advice. Rather, the state contended only that defendant was not entitled to privacy until he reached an attorney and that he was allowed sufficient time to do so.
We have held that a DUII suspect’s right to consult counsel regarding whether to take the breath test does not encompass situations “where the suspect nеver indicated any wish to contact an attorney.” State v. Mendoza,
We decline the state’s invitation to explore whether the Supreme Court’s decision in Spencer misconstrued the scope of the right to counsel under Article I, section 11.