State v. LileState v. Lile
In this criminal case, defendant appeals the trial court’s judgment convicting him of driving under the influence of intoxicants (DUII), ORS 813.010, and reckless driving, ORS 811.140. He assigns error to the court’s denial of his motion to suppress evidence of the results of an Intoxilyzer test (breath test), arguing that the evidence is inadmissible because it was obtained in violation of his right, under Article I, section 11, of the Oregon Constitution, to a reasonable opportunity to obtain legal advice before deciding whether to submit to the test.
The relevant facts are undisputed, and we state them in accordance with the trial court’s express and implied findings. State v. Ehly,
Defendant did not reach Gardner directly; however, he spoke with Gardner’s receptionist who stated that Gardner was in court. Defendant told the receptionist that he had been arrested for DUII and did not know whether to take the breath test. During defendant’s conversation with the receptionist, Wood remained within earshot of defendant; he stood at a desk approximately five to 10 feet away from defendant.
When the observation period ended, defendant submitted to a breath test, during which he provided two breath samples. Each sample indicated that defendant’s blood alcohol content was above the legal limit of 0.08.
The state charged defendant with DUII and reckless driving, and defendant moved to suppress the breath test results, arguing, inter alia, that Wood had violated his right to counsel under Article I, section 11, by remaining within earshot during his conversation with Gardner’s receptionist. The trial court denied the motion, reasoning that Wood had not violated defendant’s right to counsel because he had given defendant the opportunity to call Gardner and any other attorney that he might have wanted to call.
On appeal, defendant renews his argument that Wood violated Article I, section 11, by remaining within earshot while he spoke with his attorney’s receptionist. Defendant contends that he had the right to speak privately with the receptionist because the receptionist was his attorney’s representative and could engage in confidential communications on his attorney’s behalf. In response, the state argues that defendant did not have the right to speak privately with the receptionist because the right to speak privately with an attorney before deciding whether to submit to a breath test does not include the right to speak privately with the attorney’s representative.
Under Article I, section 11, a driver arrested for DUII has the right, upon request, to a reasonable opportunity to consult with counsel before deciding whether to submit to а breath test. State v. Spencer,
The right to a reasonable opportunity to consult with counsel before deciding whether to submit to a breath test includes the right to a private consultation. State v. Durbin,
Under Oregon law, if an officer is within earshot while an arrested driver speaks with an attorney about whether to take a breath test, the officer’s presence is presumed to have had a chilling effect on the driver’s exercise of the right to counsel. Durbin,
Accordingly, if an officer remains within earshot of an arrested driver while the driver is speaking to an attorney about whether to submit to a breath test and the driver later submits to a breath test, evidence of the test results is inadmissible. On this point, Durbin is illustrative. In Durbin, the defendant was arrested for DUII and transported tо a jail, where an officer began the observation period for a breath test. The defendant stated that he wanted to talk to an attorney; the officer provided the defendant a list of phone numbers; and the defendant reached an attorney who was willing to consult with him by phone. Thе officer remained within earshot while the defendant conferred with the attorney. After the call, the defendant submitted to a breath test. On review, the Supreme Court held that the officer had violated the defendant’s right to counsel under Article I, section 11, by remaining within earshot of the defendant while thе defendant spoke with the attorney and, as a result of the violation, the defendant’s breath test results were inadmissible. Durbin,
This case is akin to Durbin. The only difference is that when the officer stood by аs defendant was seeking legal advice about whether to submit to a breath test, defendant was not speaking with his attorney; instead, he was speaking with his attorney’s receptionist. That difference does not lead to a different result. An attorney may not always be available to speak directly with a client. As a result, a receptionist can, and often does, serve as a conduit of confidential communications between a client and the attorney. For example, an attorney may be in a meeting and have to rely on a receptionist or other staff member to relay information back and forth when a client calls. Or an attorney may be in court, but available to staff by mobile phone or e-mail.
As the law recognizes, confidential communications between a client and an attorney can be direct or indirect. See OEC 503(2)(a) (the attorney-client рrivilege protects “confidential communications” between “the client or the client’s representative and the client’s lawyer or a representative of the lawyer”); OEC 503(l)(e) (“‘[Representative of the lawyer’ means one employed to assist the lawyer in the rendition of prоfessional legal services”). When a client is speaking to an attorney’s representative to relay information to the attorney for the purposes of obtaining legal advice, the client is communicating with the attorney indirectly and those indirect communications are entitled tо the same privacy as direct communications to the attorney. Thus, the right to counsel under Article I, section 11, includes the right to privacy when communicating with an attorney, through the attorney’s representative.
The state contends that the officer did not interfere with defendant’s right to counsel in this case because the receptionist could
The state also contends that this case is similar to State v. Tyon,
“We do not have to speculate as to the effect of [the officer’s] * * * presence within earshot of defendant because we know that it did not have any effect — defendant never stopped trying to reach his attorney during the attorney consultation period.”
Id. (emphasis added); see also State v. Robinson,
Having concluded that the trial court erred in admitting defendant’s breath test results, we turn to the question of whether the error was harmless. Or Const, Art VII (Amended), § 3 (a reviewing court must affirm a conviction despite a legal error if the error was harmless). An error is harmless if there is little likelihood that it affected the verdict. State v. Davis,
Reversed and remanded.
Notes
Article I, section 11, of the Oregon Constitution provides, in pertinent part, “In all criminal prosecutions, the accused shall have the right * * * to be heard by himself and counsel ***.” As discussed below, under that clause, a driver arrested for DUII has “the right upоn request to a reasonable opportunity to obtain legal advice before deciding whether to submit to a breath test.” State v. Spencer,
In addition to arguing that Article I, section 11, includes the right to communicate confidentially with an attorney’s representative, defendant makes an alternative argumеnt based on State v. Matviyenko,
“the onus is properly on the officer to inform the arrestee — before the call is made — that, once he or she contacts an attorney, privacy will be afforded. That is because a person in circumstances such as these could reasonably conclude that, if an officer says that the person may make his or her phone calls and then sits down at the desk, the officer is planning to remain for the duration of the calls. Such a person would rightly assume that any statements made in the officer’s presence would not be confidential * * * and thus be inclined not to make the call. * * * Moreover, to conclude otherwise would require the suspect to reassert the right to private consultation, a result that [State v. Durbin, 335 Or 183, 191,63 P3d 576 (2003)] precludes.”
Id. at 130; see also State v. Sawyer,