State v. Newton

7, 1980; reargued July Argued submitted October 27, 1981 for trial October reversed and remanded OREGON, OF STATE Petitioner, NEWTON, KENNETH RAY Respondent. 27149)

(TC M79-783, SC CA 636 P2d 393 789-a

789-b 789-c Attorney Salem, Cannon, General, C. Assistant

Robert petitioner. argued were him on brief the cause for With Attorney Barrie, Brown, General, and L. James M. Walter General, Salem. Solicitor Roseburg, Defender, Bernier, C. Assistant Public

Thomas respondent. argued cause and filed a brief TANZER, J. specially concurring opinion.

Tongue, J., filed opinion. dissenting J., filed Lent, dissenting opinion. Linde, J., filed

789-d TANZER, J. prosecution driving

In this under the influence of intoxicants, 487.540, suppressed ORS the district court evi- breathalyzer dence of a test of the defendant’s blood alcohol The Court of affirmed appealed. Appeals content and the state Scharf, on the basis of our decision in State v. 288 Or 690, rehearing P2d den 288 Or 621 In State v. this court divided on whether a Scharf implied denial of access to counsel violated consent Oregon’s required statute and exclusion. A held that ORS majority an legislative policy, 487.805 as a matter of assured to arrested choice,” “voluntary a and informed 288 Or at breathalyzer take a test which was violated whether to lawyer refusal to allow defendant to call a unauthorized judges for advice as to whether to consent. Three dissented on ground legislative that the intent ORS 487.805 was not voluntary assure a and informed choice. We allowed review statutory re-examine our determination.

FACTS under the driving was arrested for The defendant validity of the p.m. at 9 The influence of intoxicants about of his to silence challenged. rights is not He was advised arrest leave officer drove defendant home to and counsel. After the wife, his defen- keys property and other with his automobile he county p.m. At about 11 was jail. taken to the dant was The defendant then breathalyzer a test. requested to take lawyer with a bеfore opportunity to talk requested available telephone administered. A breath test was administering request. officer at the time jail State Police Oregon the standard breathalyzer quoted from “regardless that form and advised defendant informational request, this have received before you may any information attorney present at to have an you are not entitled the fact is will delay ground on this any request breath test this submitted to the then a refusal.”1 Defendant constitute alcohol a blood and the results indicated breathlyzer test signature The full on lines is: advice the form above the percent. content of. 10 The district court suppressed that evidence on the basis that defendant was entitled to a tele- call phone lawyer taking to consult with before the test.

I. THE IMPLIED CONSENT STATUTE A difficulty legislative threshold discerning simply intent embodied in ORS 487.8052 is not concept implied “statutory fiction,” consent is a Scharf, 288 Or appears theoretically at but the fiction to be enigma appears An at contradictory. to be the heart law: If, (1), under subsection a driver has impliedly consented to which, breath test under may subsection he nevertheless refuse, then “the impliedly licensee-driver has not consented to anything.” Lerblance, Implied Consent Intoxication A Concept, Tests: Flawed 53 St Johns L Rev n. AND RIGHTS OF A “CONSEQUENCES DRIVER UNDER THE IMPLIED CONSENT LAW “Regardless any you may request, information have received before this the fact you attorney present Any are request not entitled to have an at this breath test. delay ground for a on this will constitute refusal. you “If refuse to take a breath test: suspended days.

“1. Your driver’s license bewill for 120 your request, Upon you granted hearing. hearing “2. you, will be If the is adverse to you may appeal the matter to the circuit court for a trial. “3. Evidence of refusal is admissible civil criminal court action. you

“After take the breath test: upon permitted, your request your expense, “You will be and at own reasonable opportunity nurse, surgeon, qualified to of obtain the services a doctor or licensed qualified person your choosing technician or chemist or other of to a administer your blood, test or to chemical tests determine the alcohol content in of addition to the given police breath test a officer. you just you? you “Do understand what has been read to Will take to now a breath test your determine the content alcohol of blood?”

2ORS 487.805: “(1) person Any operates upon highways who a motor vehicle the of this state given subject 487.835, shall deemed to have consent to ORS 487.805 to ato person’s purpose determining

chemical test of the of breath for the the alcoholic person’s person driving content of the blood if the is arrested for a motor vehicle while under municipal in the influence of intoxicants violation of ORS 487.540 or of a upon request police A ordinance. test shall be administered the of a having grounds person officer reasonable to believe the arrested to have been driving while under the of in a influence intoxicants violation of ORS 487.540 or of municipal ordinance.” however, is disappears, when it

The contradiction are realized that the words “consent” and “refusal” not used they antonyms, as because are used the same sense. act; a legal physical describes a “refusal” describes “Consent” right consent, the of reality. By implying the statute removes a refuse, or lawfully but it cannot remove his licensed driver her it: physical power put to refuse. As another court acquiescеnce

“The in the refusal of such obvious reason for by person a of to have test a who as matter law ‘deemed a given his the violence which would often consent’ is to avoid * * * upon tests recalcitrant inebriates. attend forcible “(2) given person’s be driving under test of the breath shall No chemical section, (1) person motor this to a under arrest for a subsection of ORS 487.540 under the influence of intoxicants violation of vehicle while ordinance, person request police municipal a if the refuses the of officer or of a person of: after has been informed submit to the chemical test the “(a) consequences and under ORS 482.540 to 482.560 The refusal section; this

“(b) person’s rights under 487.810. The ORS (2) “(3) person this test under subsection The refuses chemical section, prepare report police cause a sworn of the refusal and the officer shall report disclose: the shall it to be delivered to division. person “(a) person, requested to the was submit at the time Whether test, driving a under the under motor vehicle while was arrest municipal 487.540 of a of intoxicants in violation of ORS or influence ordinance; believe, “(b) grounds at the reasonable Whether the officer had made, refusing request person had to submit to test was that the time the driving ORS 487.540 or the influence of intoxicants in violation of been under municipal ordinance; of a test; “(c) person to submit to a Whether refused “(d) consequences, person under ORS such was informed Whether test; section, to submit to the and this refusal 482.540 482.560 person’s rights “(e) person under ORS was informed Whether 487.810. “(4) under person to a chemical test If arrest refuses submit under (2) tests under to chemical this section or refuses consent subsection any 487.835, person’s is admissible civil refusal evidence of ORS action, arising аlleged proceeding to have been out of acts criminal suit or highways driving a vehicle on the motor while committed under influence of intoxicants.” while * * “* firmly is drunken no It established that a driver has right simply refuse such a test It resist or is [citations]. physical power such a has the to make the test because impractical, dangerous charged to himself and those with it, administering upon that it is excused an indication of his ** *” Bright, Bush v. 788, 790, unwillingness. App 264 Cal 2d (1968) Rptr (original emphasis). 71 Cal 123 at contemplated by Thus refusal as something the statute is other than of consent is withholding legally because consent It a implied. comply is refusal to with-the consent which has already given been of a condition license drive. The of a purpose warning suspension of license following refusal is to overcome an unsanctioned refusal threat instead of is right choice, force. It to reinstate let alone a voluntary choice, and informed nonforcibly but rather previous enforce driver’s implied consent. history

The implied of the consent law confirms the . preceding description of the nature of consent and refusal as those terms are in implied used consent statutes. law is designed to possibility resistance, overcome the of physical legal despite consent, physical compulsion. without resort to Tracing history statute, we find that intert- caselaw, wined with constitutional legislation, uniform funding. federal The conclusion is clear concept implied misconception consent is rooted in a of the law due process which has become legislatively perpetuated even though the constitutional underpinnings have long since been superseded.

Implied consent statutes were initially reaction to caselaw. The sеminal case is Rochin v. California, 72 Ct S 96 L Ed There, police, armed with information which was less than probable cause to believe that the defendant selling narcotics, surrep- titiously entered his forcibly home and entered his room without a warrant. Defendant, seated on his bed next to his wife, reclining seized capsules two from his bedstand and placed them in his mouth. Three struggled officers unsuc- cessfully to extract capsules from his mouth. De- fendant was handcuffed and a hospital where, taken to at police direction and against will, defendant’s a doctor tube into defendant’s through

forced an emetic solution stomach, capsules him to vomit. In the vomit were two causing morphine. of course of conduct which

The court held the police evidence offended “those canons of the obtained the express justice the notions of of decency and fairness which process embodied in the due clause English-speaking peoples” the Amendment of the United States Constitu- of Fourteenth tion, at because

“ * * * Illegally This conscience. is conduct that shocks the breaking privacy petitioner, struggle the to into the of the there, open the forcible his mouth and remove what was proceed- course of extraction of his stomach’s contents —this ing by government to obtain evidence is bound agents of They are methods too offend even hardened sensibilities. permit the constitutional close to the rack and screw of 172. differentiation.” US at later cases made it clear that Rochin was Although conduct, just as the upon totality police the based said, thought at time to bar the the decision was the opinion as body of for seizure of evidence vio- forcible invasion the so, concern that the being That there was process. lative of due the authorizing state statutes theory invalidated Rochin blood, body from the of urine or other substances extraction Comment, testing of content. See Constitutional for alcohol Setting Motorists’ Validity New York Statute out Law — Intoxication, L 51 Mich Consent to Chemical Tests Implied for (1953). Rev 1195 later, acted in year legislature the New York One by enacting prototype response to the Rochin decision Note, Driving See While Intoxicated implied consent statute. Consent, Against Implied to Counsel: The Case Right and the statutes, new 935,938 Unlike former Tex L Rev compulsion to overcome physical did not authorize statute sample, practice for a blood to a demand resistance Rather, by Rochin. have been barred thought by the threat overcome refusal authorized statute i.e., suspension. Noth- license consequence, of an adverse offer the driver legislative intention ing suggests a of a equivalent statutory to create the a free choice or a means search; objective was to create consent in non-physical samples coercion order obtain chemical drunk statutes Implied with which to convict drivers. consent say only modeled on York statute that the test “shall New request Only be administered” on officer. if there is a required. refusal to submit are further procedures blood, breath, Oregon Prior law authorized only upon urine tests the actual consent arrested driving intoxicating liquor.3 under the influence This changed Oregon adopted 1965 when con- implied sent act essentially present its form. Its proponent explained: question

“The problem of consent remains the crux of the today. Although we have a chemical test law to deal with the problem driver, drinking fully it is not utilized due to obtaining difficulties consent Refusals [i.e. submission]. to take run high jurisdictions. a chemical test as 70. in some average, Testimony On an about refuse to take a test.” of 2/3 Nunn, Chairman, Safety Commission, Warne Oregon Traffic representing Hatfield, 1-28-65, Governor Mark House Judici- ary Committee. proponent The explain continued that consent would continue to be required for blood tests. For breath testing, however, person an arrested need not consent because his consent to be implied, was test but the would not be admin- istered if refused and if the is refusal maintained after advice of consequences.4

3 483.630(1) provided: Former ORS any person operating charged “If is arrested while a motor vehicle and is with being intoxicating liquor, person then making under the of influence the officer or may, upon person, analysis the arrest consent of the arrested cause a chemical blood, breath, bodily be made of the urine or other substance of the arrested person, person’s in order to determine the in amount alcohol then such blood.” 4 upheld except particulars. The York New statute was in two It was held to be Second, application actually in restricted to drivers who had been arrested. admin MacDuff, adjudication procedures v. 43, not sufficient. Schutt istrative were 205 Misc. 116, (S 1954). Orange significant 127 NYS2d 128 Ct Co This that it ancestry Oregon testimony demonstrates the of the Statute. Mr. Nunn’s referred to origin implied Also, emphasized consent law in York in New 1953. he proposed Oregon applied only (not suspected) Statute to arrested drivers provided appeal judicial requirement for administrative review. former Cupp Murphy, constitutionally necessary, 291, 93 turned out not to be v. see S 2000, 36 Murphy, (1973); App and State L 465 P2d 900 cert Ct Ed 2d 900 2 Or den 400 US 944

Meanwhilе, assumptions arising the constitutional Rochin, based, upon implied from which the consent act was begun Supreme had to erode. In 1957 a divided United States Abram, Breithaupt US 77 S Ct Court decided sample 408, 1 L Ed 2d 448 that a blood taken at the constitutionally an hospital from unconscious driver was body had invaded without though obtained even been held, In there was no “coercion” or particular, consent. as Rochin. The court held that “brutality” properly drawn subjection had become and the commonplace blood tests a test did not shock the conscience. The such not testing subject evidence of was therefore exclusion. dissented, however, ground Four on the justices body Rochin by any invasion of the principle was offended force was used. The result physical whether or Breithaupt v. Abram was that Rochin was adhered to, but implications and its was clarified. holding narrowness of year constitutional In the same broad of the Rochin doctrine were rejected by implications Court, Supreme important legislative United States event In very implications statutory into law. tended lock those 1957 the Chemical Test Intoxication Act Uniform promulgated. See Handbook the National Conference Proceedings State Laws and Commissioners on Uniform (1957). In implied the Annual Conference Code, adopted part of the Uniform Vehicle consent was § (1962).5 to overcome legislation Thus conceived 6-205.1 momentum at the gained obstacle institutional constitutional Court removed the Supreme time that the United States very obstacle. of 487.805

Shortly after enactment ORS Oregon’s (then 483.634), Supreme Court removed the United States consent, implied or any question that whether lingering limita- acutal, necessary overcome constitutional was v. Schmerber mandatory In upon testing. blood tions Califor- 1826, (1966), the nia, 757, L Ed 2d 908 86 S Ct 16 5 requirement, recognized adopted a division but The commissioners consent, citing, among authority other taken without as blood could be to whether Cram, testimony 577, (1945), cases, that State P2d 283 which held 176 Or sample compulsorily was regarding taken an unconscious driver admissi a from blood ble. that, circumstances, under the state could proper court held constitutionally compel a to submit to extraction testing to blood for determine alcohol content. Court prosecution upheld driving the use in for under the influence liquor sample results from a blood taken test policeman at the direction of a from conscious physician objection. stated, his The Court as it had in person over Abram, Breithaupt that the extraction did not offend Rochin, justice” “sense of referred to in there no was compelled self-incrimination under the Fifth Amendment testimonial, because evidence was and that the seizure permissible was under the Fourth Amendment because there probable was cause to believe evidence of crime delay destroy defendant’s blood and that likely would evidence, and because the manner of extraction was reason- able. four judges dissented. The Schmerber decision Again, Cram, see State v. law, was consistent preexisting Oregon with supra, 5,n and neither court has withdrawn from con- Schmerber, principle. stitutional After it has been observed: “ * * * Schmerber, Paradoxically, as a result of states ‘implied compel without consent’ statutes can motorist undergo test, a chemical while in ‘implied states with option consent’ statutes the motorist has the to refuse the test.” ‘Implied Comment: Florida’s Consent’ Statutes: Chemical Drivers, Tests Intоxicated 698, 22 U L Miami Rev for Schmerber, year In the same the legislative move- ment implied gained consent another source momen- Congress tum. adopted the Highway Safety 1966, Act of year later, USC 401-406. One Department Transporta- tion Act, formulated standards applicable under states, including Highway Safety Standard No. which required an implied consent enforcement scheme. See H.R. 9,1967. Doc. No. 90th Cong., First Sess. All 50 states now laws, implied have consent adopted almost half of them since post-Schmer- Schmerber. Although it has suggested been ber adoption of such laws reflects legislative desire for greater protection constitutionally of arrested drivers than is see Hunvald & required, Happened Whatever Zimring, Implied A Sounding, Consentí L 33 Mo Rev 323-324 ‍​‌​‌‌‌​​‌​‌​‌​‌​​​​​‌​​​‌​​‌‌​​​‌‌​‌​​​​‌‌‌​​‌​​‍Lerblance, supra history at 47 n no evidence support submitted that view.

798

Rather, has concluded in view ot this federal one commentator history that: legislative “ * * * [I]mplied is a much a result of historical consent ** *.” 58 snowballing legislatures, as of a considered choice Tex L 959. Rev at is, stated,

Thus it he “ * * * developed Although implied means of consent as a evidence, facilitating use of the statutes cur- the chemical rently the primary barriers to use of that constitute ** Ibid. evidence Schmerber, implied consent

Despite decision Oregon. not To do so would threaten the repealed has been Safety There have receipt Highway funds under the Act. however, are amendments, two which to significant been 1975, as an regarding intent consent and refusal. In legislative code, the ancillary enactment of a revised traffic license to 482.540(1) for to take a period under ORS refusal suspension months, Oregon 4 days from 90 breath test was increased The with the Laws ch 146. reason § code, “people going traffic “decriminalization” were penalty for the test” unless the refusal was made refuse take Schwab, Testimony Judge more severe. of Chief Herbert M. 6-12-74, Judiciary. In another Interim Committee on provided. legislature of refusal was The consequence adverse subsequent 487.805(4), evidence in enacted ORS which allows test. Both proceedings of refusal to take the breath legal submission rather changes compel were intended to legislative promote freedom of choice.6 than history support the conclu preceding does not legislative that ORS 487.805 embodies “the sion Scharf upon is to the breath test be administered decision that 288 voluntary and informed choice.” person’s the arrested Rather, in State v. 461. it confirms our earlier conclusion at option P2d 873 Fogle, Or imply requirement does not refusal under the statute “voluntary submission”: phrase significant legislature used to consent” when It is that the “refuses tests, phrase referring referring when but the “refuses submit” other chemical 487.805(4), supra breathalyzer See ORS n. 2. at test.

“* * * recognizes person may While statute that a test, legislature hardly refuse to submit to the could have contemplated necessary completely that it was that there be a case, If knowing understanding submission. this were the only people could be would be those who tested who were sufficiently to interfere with their mental intoxicated processes.” 254 atOr 270. Fogle

Our legislative meaning of was consistent description history very concept with the the The implied of statute. of 487.805(1) consent ORS was intended to eliminate right the recognize only choice and to actual choice in the sense of Bright, See Bush of physical supra. forbearance resistance. 487.805(2), Under ORS the arrested driver must make the initial any choice submit or refusе without the benefit of information from the police. anything, If this indicates legislative promote intent uninformed submission rather than police informed choice. The obliged give are the driver arrested information he first “refuses the after request police officer to test” submit chemical his legislature breath. Had the been concerned “with assuring the a voluntary arrested driver and informed choice” as we stated in Scharf, required 288 Or at it surely would have police to advise the driver before, after, not the driver first or chooses to submit If refuse. the breath seizure “the were very stage legislature that expressly required to be volun- tary in Scharf, and informed” as we stated 288 Or at legislature would have required pro- the information be before, drivers vided not after, provide by the evidence submit- ting to the request. initial officer’s

Instead, 487.805(2) provides ORS for drivers who with the comply request officer’s initial for a sample, process breath an though is at end even driver may never have been of anything. advised For refuse, drivers who the purpose of the statute is to provide (in an effective means short physical force Bochin) view of to overcome refusal. nonphysical means consist statutory crea (i.e., penalty tion suspen extensive license sion) (as and from a warning police officer officer, surrogate not lawyer) as defense the driv suspended er’s license if will he she continues to refuse. by implied Thus consent envisioned the statute is to be forthcoming, it is to be coerced fear if submission request lawyer to call a consequences. adverse Defendant’s compliance. statutory is not material case, alredy been In this defendant’s consent had accepted he given testing in the sense that as impliedly obtained of his license drive. His submission was condition Therefore, consent statutory implied manner. in the they complied give sup- with and no basis statutes were of the chemical test of the of evidence of the results pression breath.7 defendant’s

II. CONSTITUTIONAL CLAIMS Oregon on the throughout Defendant has also relied for suppression. United States Constitutions bases suppression of the order of arguments his in defense Although to assert expressly on he has continued Scharf, have centered unreasonable sei- rights to freedom from his constitutional that ORS 487.805 was not Having and to counsel. held zures violated, defendant’s constitutional asser- we now address tions.

A. Seizure by examining propriety the constitutional begin We State sample. Oregon of defendant’s breath The seizure laws, Oregon’s enforcement of traffic charged Police are with to such 181.040, they and are therefore authorized take ORS statutory reasonably accomplish as tend actions Obviously, by not law. prohibited and which are responsibility which has a of traffic offenses is action obtaining evidence In tendency accomplish traffic law enforcement. reasonable evidence, e.g., terms, physical taking constitutional breath, seizures are a seizure and unreasonable defendant’s is the United States by the Fourth Amendment of prohibited 9, I, Oregon Constitu and Article section Constitution these constitutional must therefore decide whether tion. We in this authority transgressed to seize were limitations on the case. breathalyzer non-compliance analyses with obtained 7 We have held that See, e.g., statutory reliability provisions admissible. of the test are not which relate 268, 459 (1969). competency Fogle, is rule of of evidence P2d This State Or non-compliance exclusiоnary held with rule. We have not rather than an exclusion, although Scharf, n requirements 288 Or at 461 see would lead

advice we not that issue here. and need reach Therefore, There was no if warrant for seizure. valid, the seizure it constitutionally is must come within exception to requirement. the warrant

1. Consent requirement The if may warrant be excused there is By this, consent. we mean actual consent. Defendant’s stat utorily implied consent cannot excuse an uncon otherwise If may stitutional seizure. defendant’s regarded submission be seize, as consent it was an informed consent in that State v. defendant knew option refusal, that he had the cf. Flores, 280 Or 570 P2d 965 The controlling principle voluntary. is that is, effective consent must be That consenting person’s be may will overborne. Bustamonte, Schneckloth v. 218, 225-226, 93 S Ct (1973).8 36 L Ed 2d a person’s Where consent seizure solicited, person and the consents after being warned refuses, that he will suffer a penalty substantial if he resulting regarded consent cannot free exercise of will. We therefore hold that defendant’s submission to the breath voluntary test not a consent to seizure because it was coerced. Cause;

2. Probable Exigent Circumstances The seizure warrantless was nevertheless not forbid den the Fourth I, Amendment or Article section because there probable was both cause believe that defendant’s breath contained evidence of intoxicants circum exigent making likely stances the evidence dissipate would if time were taken to obtain a warrant for its seizure. validity of the driving arrest under in fluence of intoxicants is not challenged and blood alcohol content is a transitory case, condition. In such a neither prohibits constitution the police per from compelling son to to physical submit extraction blood over the refusal Schmerber objection lawyer. of his v. Heintz, and State v. 239, 286 Or 594 P2d 385 California Voluntariness context is this not the same as waiver in other contexts. For Arizona, example, self-incrimination, v. unlike the law of testimonial Miranda cf. necessity consenting right there is no be informed of his to consult with right preliminary counsel and that to a valid consent to search. United he waive Watson, (1976). See, 411, 96 Flores, 820, 46 States v. supra. State 423 US v. S Ct L Ed 2d v.

(1979); fingernail scrapings, Cupp Murphy, re accord (1973). L 2d 900 The assistance 93 S Ct ed validity of the seizure because material counsel is not right right greater no to refuse and “he has no defendant has advised him that he could assert erroneously counsel because Schmerber, con- 765-66. That is a dominant it.” 384 US at statutory considerations of this case: principle stitutional lawfully compelled defendant aside, could have testing regardless of whether provide sample a breath defendant regardless called a of whether lawyer defendant Therefore, we conclude had refused to submit to the seizure. provisions search and seizure neither constitution that the were violated. Right

B. to Counsel is his right to counsel material because Defendant’s delay lawyer discouraged by advice to call request refusal, in a license resulting therefor would be deemed effect, discouragement of defendant’s In suspension. denial of it. request was a I, Amend section nor the Fourth

Neither Article war they compulsion when compulsion; allow ment forbid right The of counsel does ranted or otherwise reasonable. under the Fifth Amendment as it does apply under Fourth and seizure need not a reasonable search Amendment because above, may Rather, said seizure be voluntary. as we attorney. Schmerber of the action of an compelled regardless Heintz, supra. all No Cupp Murphy, v. California, State of freedom from implied by right is right of counsel Therefore, discouragement seizures. unreasonable validity of no effect on the attorney has defendant’s call to regard. the seizure in this required that counsel is because arguable

It is also See request stage prosecution. a critical breathalyzer Fitzsimmions, 2d 610 P2d 893 93 Wash State v. evidence- attaches to certain right to counsel stages” are deemed “critical processes which gathering right an extension of defendant’s prosecution Any adver pre-trial in court. counsel representation some at and a defendant which sarial contact of state present, if counsel is not be lost benefit of counsel would is, may that at which the state’s case or be enhanced the impaired counsel, may defense due the absence of be stage prosecution a of considered critical the at which defen dant of right presence Thus, has a counsel. the under Amendment, Sixth surreptitious questioning of indicted defendant the absence of counsel denial is deemed a of Massiah v. stage prosecution. counsel at critical States, United 1199, 201, 377 S Ct 12 L 2d US 84 Ed 246 (1964). Similarly, a is presence defendant entitled the of post-indictment counsel line-up at because it is deemed a Wade, United States of stage critical the prosecution. 388 Gilbert v. US 87 S Ct 18 L Ed 2d 1149 California, 1951, 18 (1967). 87 S Ct L Ed 2d 1178 stage Evidence obtained at a right critical at which the counsel or has been afforded waived is subject exclu sion. breathalyzer

The test in this case cannot be charac terized stage. Any as critical gathering, evidence however early investigation prosecution, in the may affect adjudication ultimate and could therefore logically regarded stage. breathalyzer critical A request and sub process. Yet, requires mission is such a no law lawyer every secure a person from whom evidence is sought at any time in the course of an investigation at the risk of having suppressed evidence if the ultimately is charged. every evidence-gathering procedure Not is a critical stage. Obviously, stage concept the critical has a limit that Illinois, limit Kirby by was set the U. S. Supreme Court 682, 92 1877, 32 US S Ct L Ed 2d majority upheld a post-arrest, pre-indictment evidence from identifica procedure. tion It held that an adversarial contact is criticad stage in prosecution only after the formally defendant charged: judicial proceedings

“The initiation of criminal is far from starting point system a mere is the our formalism. It of whole adversary justice. only of criminal For it is then government prosecute, has committed itself to positions government then adverse and defend- ant have solidified. It is then that a him- defendant finds society, self prosecutorial organized faced with the forces pro- and immersed in the intricacies substantive and point, therefore, law. cedural criminal It is this prosecutions’ marks the commencement the ‘criminal explicit guarantees which alone the of the Sixth Amendment applicable. at are US 689r690. [Citations omitted.]” concurred, Justice Powell making plurality, on the basis that the exclusionary rule not be should further extended.9 arguable adopt point,

It is that we should an earlier arrest, e.g., which define commencement “all I, as that term is prosecutions” used Article section Constitution, Oregon but we conclude that the formal charge legal obligation is the event which commences the of provide Functionally, legal the state to counsel. there are no appointment prior for the of counsel for procedures indigents charge and, a being brought to formal as we observed in at Scharf, 288 Or 456 n the decision to commence criminal proceedings rather than administrative not commonly is made test breathalyzer until after a is refused or taken and the result known. v. State Dept. Safety, See Prideaux Public 310 Minn of (1976). Hence, I, 247 NW2d 388-389 under Article reasoning Kirby in the right section we concur of that the “in prosecutions” to counsel all criminal includes critical Fitzsimmons, Kirby supra, Washington Supreme Court in cited for the Kirby stage,” disregarded principal holding the of that the of “critical but definition concept Moreover, charge is laid. the is limited to confrontations after a formal judicial requiring opinion preliminarily rule on a to Fitzsimmons based telephone person promptly also on United an a call. Fitzsimmons relies allow arrested Wade, opinion supra, but is inconsistent with this dicta in Wade which is States the breathalyzer applicable Schmerber into submission once is taken account: to step lineup preparatory in as mere the “The Government characterizes the evidence, prosecution’s gathering not different —for Sixth Amendment of the preparatory steps, systematized

purposes or scien- various such as other —from hair, sample, clothing, analyzing fingerprints, blood and the tific of the accused’s stages preclude being charac- there such like. We think are differences which stages right presence has of his at which the accused the terized as critical techniques sufficiently Knowledge technology of science and counsel. available, techniques enough, has in few accused and the variables opportunity meaningful of Government’s case at trial for a confrontation expert through ordinary processes the Government’s of cross-examination of experts. presentation The denial of evidence of his own witnesses and the analyses present right at violate the to his counsel such does therefore have Amendment; they stages is minimal risk that his are not critical since there Sixth right stages might derogate trial.” his a fair at from counsel’s absence such Wade, United 388 US at 227-28. States prosecution subsequent or stages to indictment other charge. formal Because charged, this defendant had not been right provision no to counsel under either constitutional had yet attached. Liberty

C. Finally, any right if or interest was denied defendant by discouragement request counsel, his was that to which we referred long “the established and well- Scharf any right attorney,” known arrested person call Or To at 460. know the extent of personal right and the imposed limitation upon existence, the state its and in cases, order to determine the right effect in individual necessary identify it is its theoretical “long basis. However well-known” established and the right of an arrested a phone may be, call survey the caselaw and authorities yield any fails to helpful right discussion of the other than in helpful context of right discussion of the other than context of evidence gathering representation during the prosecution as we discussed above. Nor have counsel been able right. articulate a source of any practice such Yet so traditionally and rigorously observed must deep have roots the law. This case is may unusual in that there be an evidentiary request lawyer effect defendant’s call hеnce we upon are called to give rights some definition to the of of communication an arrested application for to this case. analytical

The usual on to right focus counsel is misleadingly narrow. The issue in ultimate this case is one of liberty, safeguards. organic It is axiomatic from our concept of government every person’s constitutioal lib erty complete except is as the people granted have to them (i.eto collectively selves the government) power the to liberty. restrict individual The idea is as as fundamental the Social Contract and it is embodied ‍​‌​‌‌‌​​‌​‌​‌​‌​​​​​‌​​​‌​​‌‌​​​‌‌​‌​​​​‌‌‌​​‌​​‍in the Fourteenth Amend ment to the United States Constitution which forbids states to * * * * * * “deprive any person liberty of process without due of Thus, will, example, law.” we are to at free cross streets but is subject governmental freedom to lawful restric place safety tion as to public to time and serve and we, people, given traffic needs because the have police power government liberty to regulate in

806 ways tendency accomplish

such as have a reasonable those objectives. social constitutionally liberty

Our assured is not limited to rights Rights the Bill of such those we the itemized in Rather, liberty by discussed above. the referred to the Four of Amendment, governmental teenth in the lawful absence restriction, and Harlan general scope variety. Justice idea expressed the well: “ * * liberty by scope guaranteed full of Due the the *[T]he by precise be found in or limited the Process Clause cannot provided specific guarantees in the terms of the elsewhere ‘liberty’ points of Constitution. This is not series isolated property; pricked taking the of the freedom of out terms of arms; keep speech, press, religion; right to and bear and seizures; unreasonable from and so the freedom searches and which, broadly speaking, on. It is a rational continuum arbitrary impostions a freedom from all substantial includes * * * recognizes, purposeless and which also and restraints must, judgment awhat reasonable and sensitive that certain scrutiny require state particularly interests careful * * *” abridgment. needs Poe justify asserted their 543, 1752, (1961) Ullman, US 81 S Ct 61 Ed 2d 989 367 J., Harlan, (opinion dissenting appeal) from dismissal of (citations omitted).10 analysis sound and be

We believe lawyer to call a applicable to this case. Defendant’s freedom deciding breathalyzer testing was not before submit Fourth in this situation the Sixth safeguarded Amendment, but, Amendments, Fourteenth his under or deferred unless freedom do so could not be foreclosed 10 Supreme holdings of United Court are consistent with this Recent States example, view, they persuasively although court has are reasoned. For less essentially process protective marital due as a doctrine for and revived substantive Connecticut, 479, 85 1678, 14 liberty. procreational S Ct L Ed In 381 US 2d Griswold (1965), contraceptives prohibiting use of because court invalidated statutes 510 personal privacy they in the Amendment and zone of found Ninth violated a Wade, First, Fourth, Roe v. “penumbras” and In US Fifth Amendments. cursory L after a discussion of those 93 S Ed 2d Ct Amendment, amendments, penumbrae, at their the Fourteenth early they prohibiting within abortions because are barred the states from court * * * personal concept privacy “right in the Fourteenth Amendment’s founded ** upon liberty at 153. That shorthand state action US restrictions opinion adoption conceptualization. implies See of of Justice Harlan’s rationale Stewart, J., concurring, US at 169. liberty to to do so. Defendant’s were authorized police communicate free “purposeless he chose was to be from Therefore, restraints,” subject lawful restraints. we but to liberty and of and to magnitude look nature next of purpose a lawful for the denial whether record discloses liberty. an opportunity person promptly of arrested to beyond communicate confinement is not necessarily of magnitude of liberty pri same as marital and procreational vacy Supreme which the United States Court held could interests, be restricted “compelling” public for see Griswold Roe, Neither, however, supra n 10. is it thing a minimal beneath the of everyday notice the law. The to freedom communicate with others greater importance takes on when one is in the police enforced isolation of custody. Communica may tion be the means security release, advice, reassurance of family associates, professional one’s or assistance. For at reasons, least these allowance of a telephone following call arrest has become traditional and incommunicado incarcera regarded tion is as inconsistent with American notions of liberty. ordered Freedom an person arrested to communi significant cate is a liberty and substantial may only which officially if legal restricted there is authority to do so.

As above, we observed authority police enforce the traffic laws authority carries with it the all do things tendency which have reasonable accomplish responsibility which are not otherwise prohibited by law. control, Executive such actions as traffic detention for license arrests, checks, searches, jailing, etc., necessarily restrict some aspect personal liberty degree reasonably required performance act, they that lawful but are nevertheless permissible they if are authority within the police lawful agency to enforce traffic laws.

The police may lawfully restrict the freedom an arrested reasonably communicate to the degree required performance for the example, their duties. For where the are authorized to seize “highly evanescent evidence,” Heintz, see 286 Or at delay caused attempt to call impair ability counsel would their so, may the

effectively they require person’s do that arrested comple- of the freedom to call deferred after exercise be until the tion of seizure.

Here, required was no that the showing there time to efficacy make a call have reduced the would the breathalyzer Indeed, the police test. allowed about two hours transpire breathalyzer request, to the arrest and the between Moreover, suggests urgency. Oregon a lack of Admin which (1972), regulates istrative Rule which the manner 333-13-020 breathalyzer requires person the under testing, that minutes The prior observation for 15 test. record why telephone no a an discloses reason call on available period impair the during observation would the evidence process, assuming person object the arrested did not gathering during observation the call. is there of the to Nor evidence in State v. Haynes, referred 288 Or existence what we to P2d practical as “the necessities of custody” justified deferring which have defendant’s call might Moreover, circum any to counsel. the absence such stances, Oregon advice on the Police form absolute State delay a have a “[a]ny request lawyеr present] for will [to supra, see refusal,” n. was not correct in legally constitute provides support In record no a holding this case. sum this police performance were authorized in the their by threatening adverse duties to restrict defendant’s freedom consequences telephoned if defendant counsel. holding upon is an emphasize

We our based personal liberty, upon and not unauthorized restriction in the Bill of specific right denial or violation of enumerated right, e.g., That is A Rights. distinction material. denial of may prosecution, stage to at a critical right counsel advice, indigent, if there no for the provision occur is Freedom voluntary right. and waiver of that express, knowing however, different liberty, with is from interference state from right. entitlement to a is barred from to unlawfully restricting liberty, obliged but all the he is to take nor itemize to actions free to exercise indigent person with means provide to precondition taking state’s his freedom as perform Here was no failure of action. there rather, counsel; any obligation protect right defendant’s circumstances, under these there was an unauthorized restriction of defendant’s freedom call counsel.

III. EXCLUSION We observed in the context of self-incrimination Haynes, at 71: State Or “ * * * suggested No one so far has that interference with lawyer, person’s improper an arrested to a access however and remedies, subject to other itself to a would lead reversal of a subsequent nothing if conviction fact said defendant no evidence obtained as a result nor other harm done to generalized right his eventual defense. Thus it is not a but, quoted counsel that concretely, decisions we have enforce more right derivative the benefit of counsel’s involuntary incriminating efforts to forestall disclosures. * * practical

Exclusion of evidence is device intended to agents beyond deter acting state from constitutional limitations. we recently As Quinn, observed State v. 290 Or 383, 397, (1981): 623 P2d 630

“* * * excluding The trustworthy device of evidence from factfinding process higher purposes order to serve ‘is a needed, medicament; grudgingly but taken no more should be Amsterdam, swallowed than is needed to combat the disease.’ Search, Seizure, 2255, and Section 112 U LPa R (1964).” applied We have often the exlusionary rule in the context of rights denials of Rights, enumerated in the Bill of but this case is our first occasion deprival to consider exclusion for liberty by assured the Due Process Clause. require

We decline to exclusion of the evidence for reasons from this record and arising also for reasons which particular transcend this case. This record is insufficient (rather establish the sequential) fact a causal than merely relationship request lawyer between the to call a and the obtaining request of the breath an sample. Defendant’s for opportunity lawyer to talk to a was no general. There is available, evidence lawyer lawyer that he had a or or fact any other from which it can be if inferred that defendant given opportunity, had been an it was reason ably likely to have been no fruitful. The evidence shows telephone

indication that if had been given defendant and it, use legal and, few minutes to he would have secured advice so, if whether advice would be to take the test or A not.11 relationship impropriety causal between the official and the of evidence giving must be established one who seeks to ground exclude the evidence on the it is a result of that Wong State impropriety. Quinn, supra, Sun United States, L 83 S Ct 9 Ed 2d 441 This record, best, speculate at would allow us to do no than more an opportunity lawyer whether to call a would have caused an evidentiary result. issue, requiring

On the broader we find no case or not constitutionally protected exclusion requiring deprival liberty begin analysis by observing interests. We our scratch exclusionary rule, are just there is not there several rules, exclusionary purposes require- each with its own ments. As we said in Scharf: admitting excluding improperly

“Decisions on or obtained ‘exclusionary single evidence are not instances of rule.’ Rather, they depend premise on whether impropriety obtaining was a law addressed manner using protecting unrelated the evidence or a law some interest. *” * * 288 Or at n 10. differ, the rules it is to review them Although appropriate us in determin- briefly principles may guide to discern which following evidence ing whether exclusion of obtained liberty restriction of must be excluded. absolutely exclusionary rule is applied Miranda v. Ari of Fifth Amendment.

fruits of violation (1966). 1602, 16 L This is zona, 436, 86 Ed 2d 694 S Ct upon one’s own one’s not to be convicted right so because It is to modera testimony subject is absolute. compelled or consid situational variables competing policies, tion due to interests are not liberty Because reasonableness. erations of above, does C, Fifth Amendment law absolute, see Section II apt an analogy. not provide may request in Fifth or Sixth Amendment sufficient Amendment 11 The alone Arizona, 8, context, supra considering v. n but here we are Miranda cf. liberty, rights. not a of

restriction of denial

811 law, applies is Sixth Amendment as it to evi Nor States, particularly dence Massiah v. United gathering, apt. interrogation a Sixth case supra, regulating Amendment may subsumed counsel, the аbsence now be law, e.g., v. post-Miranda Fifth Amendment see Brewer Williams, 387, 398, 97 1232, 430 Ct 51 LEd2d 424 US S Gilbert, Moreover, lineup cases, supra, limit Wade solely exclusion to during stages evidence obtained critical aspect right v. Kirby confront witnesses. See also Illnois, supra. The reasons for exclusion in these cases do no exist here. principles

Fourth Amendment cases are based on policy reasonableness and competing considerations. Hence are they greater analogical significance in this case. exclusionary of the source federal rule was v. Weeks United States, 383, 341, (1914), 34 S 58 US Ct LEd 652 in which Supreme the United States party Court declined to be a by Fourth Amendment violation use of allowing evidence By Ohio, time of obtained. US Ct Mapp 81 S (1961), 6 LEd2d underlying theory of exclusion changed had pragmatic, somewhat. The court took a rather analytical, than approach. It observed from the cases over the years common, violations were that the privacy states had found no alternative method of such deterring violations and that required exclusion was that purpose. therefore somewhat, Mapp, judicial emphasis

Since has varied but the United Supreme State Court adheres to the view that deterrence is the dominant purpose Fourth Amendment rule, exclusionary applied but that need the rule not be so as Indeed, possible achieve maximum deterrence. United Salvucci, 83, 100 L States US S Ct 65 Ed 2d 619 opted the court for a application narrow the exclu sionary necessary rule application because broader was not theory narrowing to achieve may deterrence. This allow for the rule non-exclusion violate privacy where rights despite good comply their fаith intent with the Amendment, Williams, Fourth United States v. 622 F2d (5th 1980). 840-848 Cir

Prior court had occasion Mapp, this never adopt an exlusionary rule it had never found because dicta, to be unlawful. In the court stated that search or seizure arose, probably apply if the occasion ever it would the federal reasons, 443, 204 Laundy, the federal State v. 103 Or P rule for Hoover, 958, (1922), 288, 206 P 290 see also State v. 219 Or (1959), separate P2d 69 but it did not formulate a or alterna today. hand theory guide tive which should our Subsequent to Mapp, this court has purported to apply and adopt federal See, search and exclusionary law. e.g., Florance, 169, State v. (1974). 270 Or 527 P2d 1202 It has also excluded evidence for violation of a protects statute which privacy, Valdez, State v. (1977), 277 Or 561 P2d 1006 but for violation of statutes promote which safety and accountability in search and procedures, seizure State v. Valentine/Darroch, 54, 60, 264 or (1972), 504 P2d 84 and State Cortman, 566, 571, 251 Or 446 P2d 681 cert den 394 (1969). US 951 provide These cases analytical no help beyond what is found in federal caselaw.

The empirical and pragmatic approach in Mapp Ohio is consistent approach with an expressed in State v. Shipley, (1962). 232 Or 375 P2d 237 There we recon- sidered whether adopt the federal McNabb-Mallory rule12 which holds that statements during period obtained of non- compliance with the statutory requirement that an arrested person be brought promptly before a magistrate, must be suppressed even though voluntarily given. In Shipley, we concluded that the statute requiring hearing delay without had been violated voluntary and that a confession had been elicited during delay. We declined to adopt a rule of suppression, however, because the statute ‍​‌​‌‌‌​​‌​‌​‌​‌​​​​​‌​​​‌​​‌‌​​​‌‌​‌​​​​‌‌‌​​‌​​‍require did not and because the voluntary. confession was judges Two dis- significance, however, sented. Of and most similar to the rationale Mapp, was the Goodwin, J., observation of con- curring, that we ally should not automatic adopt an exclusion- ary Rather, rule. if repeated the event were and became a practice, we would adopting reconsider an exclusionary rule in order to deter future violations put of law. As he it: States, 332, 63 (1943);Mallory McNabb v. United 318 US S Ct 87 LEd 819 States, 1356, 1 v. United 77 S Ct LEd2d 1479 primarily duty

“If charged enforcing those with the unwilling discharge duty are unable to in this law their respect, duty. then the courts should not shrink from their * * *” 232 Or at 366. parallel

There are considerations this situation. by The trustworthiness of the evidence is unaffected by police implies improper conduct. The form used pattern past may reasonably suppose conduct, but we good misunderstanding the form is the result of a faith law rather than from an official intention to evade the law’s requirements or to hold arrested drivers incommunicado.13 may expect opinion We that the clarification of law in this will change police practice be sufficient to cause a and deter necessity creating future similar conduct without the a new exclusionary repeated rule. If occurs, violation then Supreme Mapp United States Court did in and Justice Good- Shipley, may win warned in we consider resort to the exclu- sionary necessary rule as a means to deter future violations. phrased now, however, For as we Quinn, it in the disease is not “ ‘grudgingly so advanced that we need to swallow more of the ” suppression taken medicament.’ The reversed, order of may and the evidence of defendant’s breath test be used at trial.

Reversed and remanded for trial. specially concurring.

TONGUE, J., by opinion by I concur in the result reached question, holding right Tanzer, however, J. I its that the of a person attorney “liberty” arrested to call an is a constitutional under the Fourteenth Amendment of the Constitution of the by United States. No such contention was made defendant agree right this case. I that a arrested has a to call an attorney, prepared ambut to hold at this time that such a right “liberty” is a constitutional under the Fourteenth Amendment. respect vigorous by

With Linde, J., dissent I agree with much of its criticism of that constitutional (1977), Jones, 55, 60, required in which we State v. 279 Or 566 P2d 867 Cf. obtaining suppression prosecutorial it. of a blood test due to unethical conduct by out Tanzer, pointed J. As opinion by in the

analysis in State v. however, decision this court dissent, previous upon was not based 451, 605 P2d 690 Scharf, 288 Or defen- grounds that the grounds, upon but constitutional attorney existing under to call her right dant in that case had law, and that law, of federal constitutional Oregon regardless the results of Oregon law that it follows from this violation excluded. breathalyzer test must be agree ground, I with the decision in on the first Scharf and still the second disagreed, disagree, ground but with view, exclusionary In rule should my decision. for ordinarily applied only be violations of constitutional rights ordinarily applied should not violations statutes or on other non-constitutional See State v. grounds.1 (1972). 54, 66-69, Valentine/Darroch, 264 Or 504 P2d 84 See (1980); Bishop, also State v. 288 Or 605 P2d 642 State v. Valdez, 621, 629, (1977); 277 Or 561 P2d 1006 State v. Cortman, 566, 571, my 251 Or 446 P2d 681 It is also exclusionary view that rule is a rule which should be strictly in as while under Driving construed cases such this. the influence of intoxicants is an offense which is the cause of any deaths than offense. more other crime or To admit into evidence the breathalyzer results of a test taken unreasonable, without advice of counsel is no more in my opinion, than to admit into evidence the results of a blood alcohol test from blood taken from an unconscious hospital, driver in a as held to in Breithaupt be admissible Abram, (1957). 432, 408, 1 77 S Ct LED 2d 448 See also Heintz, 239, (1979). State v. 286 Or 594 P2d 385 For these reasons, by I concur in the result reached the majority. course, may, expressly provide through 1 A statute of that evidence obtained its application procedures In will not be “valid” unless certain are followed. a case statute, involving finding non-compliance required procedure such a a court with a refusing would be in correct to admit the “invalid” results into evidence. See State v. Fogle, 268, 459 (1969). respect question case, 254 Or P2d 873 raised in this With 487.805, and, therefore, my opinion, requires in ORS is not such a statute no such exclusion. LENT, J., dissenting.

I joined have in Justice dissent, Linde’s but I wish to point elaborate on a only lightly touched in upon his dissent. In State v. 451, 605 288 Or P2d Scharf, we rendered decision primarily which was a matter of inter pretation of statutes of the Oregon. State of This court has specifically held interpretation that its of a statute becomes “a part of the as statute if written into at the time of its Elliott, Oregon enactment.” State 460, 465, 204 Or of P2d cert. denied 349 US 75 S Ct L99 Ed 1260 legislature Since the decision in Scharf, has met regular any in session and failed to take action which would displeasure indicate with that decision. I Ordinarily, would be legislative response loath to consider failure to in act to a decision as judicial having weight much in determining Legislative Department whether of government state approved interpretation statute, our by for mere inaction the legislature may simple result from inattention or the pressures legislative business, other but we do not have here a case of mere inaction. have, rather,

We the situation in which the matter brought has been to the attention of legislature by governmental concerned agency, legisla- refusal ture to overturn the result of our decision Scharf. Department Transportation, part establishеd Department Oregon government, Executive state Or Const. III, 1, 184.615, Art “presession” ORS caused a bill to be filed § in the regular legislative session. The purpose obvious bill, House Bill No. towas overturn the decision of this court evidence was be excluded. Scharf than space by setting Rather waste forth bill its entirety, quote summary I on printed the bill: results, pur- “Permits use of chemical test administered Law, Implied regardless

suant to the evidence Consent opportunity given whether or not the to obtain driver was advice of counsel.” legislature. immediate attention of the

This bill received the 12, 1981, and was body January That convened on the bill Judiciary January on on 15. referred to the House Committee February hearing held a on the bill. On On a subcommittee in rules bill tabled committee April 15 under House April 21, for of affirmative action. On the other subcom- want Judiciary hearing held a on mittee of the House Committee had On despite already the bill the fact that it been tabled. the bill from the April during a work session was taken considered, table, tabled in committee. again see, therefore, legislature, acting that the accord-

We adopted carrying rules and methods which has ing responsibilities, its the Executive rejected out functions and in request holding our Department’s express to overturn I note that the evidence must be excluded. would also Scharf legislature the 1981 session of otherwise devoted relating driving while under great deal of attention laws our unchanged the influence of intoxicants and left decision Scharf legislative special

Given both this attention body’s closely- general rule of and that concern with Scharf here laws, legislature’s related I conclude that inaction as the in which a should be viewed much same situation body, particular body lеgislative amending revising while law, challenged has left the section alone. at like that in the case bar is much situation Court in United States Supreme before the United States Co., South R. S 92 L Ed 1077 333 US 68 Ct Buffalo challenge Supreme was faced with a where Court interpreting part its of the Interstate prior decision Elgin, Joliet a case entitled United States Commerce Act Co., & Eastern R. 841, 80 L Ed 1300 56 S Ct Elgin the Interstate Commerce After decision decision Congress had entreated overrule that Commission us, had by legislation. As in the case before the Commission Congress purpose to be introduced for that caused a bill South legislation. In requested had to enact the refused court, effect, to case the asked the States United Buffalo The court interpretation former the statute. reject its responded: Elgin

“It is the Government’s contention the decision Act, history legislative misconstrued its the misunderstood misapplied prior and the Court’s own decisions. It is not necessary in the view we take of the case to decide to what extent, any, if enough these contentions It is are correct. Elgin say if case were us first before as a case of impression, might approved. its not now be But we doctrine do not write on clean slate. What Court has written events, before is but one of series which convinces us that overruling Congress. its or modification should left to As day, the Court held our questions on last decision when the construction, statutory are Congress import, not of constitutional rectify mistake, was, can change our such it its if time, policy any at and in these circumstances reversal is readily States, to be made. Massachusetts v. United 333 U.S. 19,1948. Moreover, April case, decided in this unlike one, Congress alleged cited has considered the mistake and ” change (Emphasis added.) decided not to it. 774-775, 333 US at 68 S L Ct at 92 Ed at 1081. similarity

The in presented by the situation the case at bar and that above striking. described is The same rule should apply.

Another recently court has come to a like result in a case, similar stating: decisis, context, any

“The doctrine stare weighty in especially in statutory so matters of construction. For in such may Congress any cases cure error made the courts. Until does, public justified the bar expecting are courts, except cases, egregious in the depart most neither to previous statutes, interpretations from give nor to them a application.” grudging C.I.R., (8th 1980)

Cottrell v. (footnote 628 F2d Cir omitted).

Quite simply, following situation obtains case at bar. This interpreted court the statute in A Scharf. agency concerned Department sought Executive interpretation very regular overturn that at the next session of the legislature. Legislative Department refused to amend Now, as requested. statute due in the change person- court, nel of majority this a new refuses to follow the rule just of stare decisis the kind case to which the singularly pertinent, rule is and the Department Judicial government change department makes the which statutory law has considered and charged formulating with to make. That course of action is both unwise refused unseemly.

Linde, J., in this dissent. joins LINDE, J., dissenting. years ago,

Less than two this court decided that when unlawfully deny telephone request officers driver’s or not to submit attorney choosing before whether intoxication, a not breath test for the results such test have lawfully be to the been obtained and cannot used convict v. person driving under the influence of intoxicants. State (1980). This a 288 Or 605 P2d 690 was decision Scharf, law, by Oregon uncomplicated problems. under constitutional law, assuming the to changed change The decision could bе Today, be otherwise constitutional. this recent decision differently aby plurality overturned constituted and one change there has been no in the concurring opinion, although the it when Because law remains what was law. Scharf decided, plurality opinion needlessly because the enmeshes difficulties, it the law in serious constitutional and because an Oregon legal right with a without people leaves remedy, I legal evident dissent. in rested on two The court’s decision State Scharf police The first was that officers do have

propositions. a authority prevent custody using from person matter, (or a for telephone lawyer available to call that a lawyer), beyond may justified someone other than what and the cir by the “immediate necessities of arrest pre at The court custody itself.” 288 Or 455. cumstances Haynes, 288 602 viously as much in State v. Or said (1979).1 proposition that depart P2d 272 It does not from “ disputed right person has access ‘It that an arrested have is not thereafter, practical custody subject when taken into counsel may custody temporarily prevent immediate communica ‍​‌​‌‌‌​​‌​‌​‌​‌​​​​​‌​​​‌​​‌‌​​​‌‌​‌​​​​‌‌‌​​‌​​‍ necessities of nothing law, Oregon nor did with We know counsel tion counsel. asked, prevent delay when that would authorize state is, lawyer who or who is an arrested communication between become, attorney. Certainly nothing person’s of the kind follows asked ” simple . .’ fact of an arrest.. from Scharf, 70-71, quoted 2. in State Or at n. Or at today. The court reaffirms that it is unlawful for an officer to tell an arrested driver that he or she cannot make a telephone call until the driver first decides whether or not to submit test, happened the breath in this case.

The second proposition in State v. was that Scharf prevention the unlawful telephone call for legal advice, by the followed driver’s uncounseled submission to the breath test, vitiates the use of the against test results driver criminal prosecution. This result followed because “implied law, consent” 487.805, ORS provide does not for the involuntary administration of a breath protesting test to a suspect. contrary, To the contemplates the arrested may driver refuse to take the price test at the 120-day suspension of his or her 482.540(1). driver’s license. ORS Moreover, this depends sanction a prior explanation on driver of consequences of refusing tést, the breath to be established in an adjudication in which the adequacy of the explanation can be contested. 487.805(2), ORS ORS 482.550. The driver who is “requested,” 487.805(2), ORS not com- manded, to submit to the test therefore genuine has a choice with potentially importance decisive to his liberty. When a legal driver seeks advice before making that choice and is unlawfully prevented so, from doing there is an improper interference with the driver’s choice to take or refuse the breath test. The court concluded that the use of a test resulting from such improper interference to obtain a criminal conviction does square not statutory with the scheme that allows an informed driver to refuse the test at the of a price license suspension. This conclusion in made unnecessary to Scharf any

reach constitutional question, at least unless and until the legislature might change the law. The legislature has not done so, as Justice Lent’s dissent points Nevertheless, out. the new plurality now chooses plunge to the court into needless con- stitutional speculations ultimately lead it wholly to a incongruous conclusion.

Justice opinion Tanzer’s begins with a history of the “implied statutes,” so-called consent such as ORS 487.805, and its relationship to certain Supreme Court deci- sions. The sole object of this lengthy review is to argue

820 that, although statute the “request” directs to a test, to take suspected driver the breath not to order or so, although permits command driver to do and the statute refuse, driver to nevertheless it does not him or her leave any choice. and are to “Consent” “refusal” said not be “antonyms.” respect, of legerdemain With that bit verbal flies reality. face of to in the a Whether a refusal to a breath submit “refusal,” 487.805(2), a a test ORS or of a withdrawal “consent,” the the same. may fictitious effect is The driver test, to to the choose not submit and test is not admin- The not use any “physical istered. reason is the driver’s of (291 793). legisla- Or at To the power” contrary, resist ture chose to to refuse in the statute recognize option itself.

The question wrong- therefore is not what effect make person telephone ful refusal to let an arrested call have if the officer to enforce a would were authorized any test in But he breath or other examination event. has authority. sought such An coerce sub- no officer who protests resisting mission to test over the of a sus- breath this pect plainly following would not statute.2 Even the 2 plurality opinion’s in the This illustrates the flaw careless and illconsidered police authority phrasing encompassing under as of state ORS 181.040 “such actions reasonably accomplish tend the traffic which are not [enforcement laws] many by might prohibited things in There are which “tend” to aid law law.” do, authority they has if are enforcement but which an officer no even not by example, “prohibited we criminal assault law.” For need not look law of patrol forcibly highway that ORS does not authorize officers draw conclude 181.040 intoxicated, every stopped suspicion driving though on while blood from motorist Heintz, might produce evidence See State v. 286 Or this 257, “tend” to of crime. (1979) opinion). normally (concurring P2d 385 We look to law which personnel people, express prohibitions government not for on are authorized do to authority may question they plurality’s phrasing begs the do. The what favorite, “reasonably.” characterizing scope authority by legal that old evidence, authority obtaining their that evidence When officials exceeded have prosecution. unlawfully basis and cannot be made the of a has been obtained law) Supreme (as held matter of Colonnade States Court so federal United (1970), States, 72, 90 774, 25 Catering Corp. L S Ct Ed 2d 60 this United Fairley, Valdez, and State v. Or in State 277 Or P2d 1006 court 689, Seharf, exclusion is P2d 179 As we said State v. test for premise origin constitutional but “whether the whether the of unlawfulness is of using obtaining impropriety premise the manner of was a law addressed to Certainly protecting n. interest.” 288 Or at 10. or a law some unrelated evidence practice denying improper police practice in this an arrested case—the the telephone deciding the manner submit the breath test —concerned call before evidence; purpose practice. obtaining was the of the that suspension imposed only can sanction of license if the consequence explains persisting officer first this in the Obviously objective “implied refusal. laws consent” suspension; is use of the test rather than refusal and license hardly lengthy Nonetheless, that needs demonstration. preserves provision call statute choice of refusal. To this openly candidly hide and “threat” cannot the fact that genuine leaves a choice who far to driver is more threatened by a criminal on of a conviction the evidence breath test. variety opinion

Part II of the discusses constitu- authority tional on limitations the state’s to administer the test, breath which become relevant because new majority 11(C), is determined to overturn State v. In Scharf. plurality essay political philoso- launches into an on the phy liberty Compact” and the “Social order to show right lawyer defendant’s to call his derives from the 14th amendment of the United States Constitution. Whatever its rhetoric, merits as this section falls short as serious constitu- analysis. tional

First, invocation the federal 14th amendment for person’s right an arrested not to be held incommunicado suggests Oregon deny right if law would such it were not by higher authority. simply restrained federal false, That is supra, Haynes, supra, State v. Scharf, State v. and it is an unwarranted affront Moreover, to the law of this state. in the plurality’s thing terms, own if there was such as a “Social Compact,” expression Oregon it found its when Recame 1859,3 a state in well before the Civil and the War post-war adoption of the 14th amendment in 1868. It is wholly theory imply inconsistent with that that Ore- gon persons would allow law to hold in- arrested communicado if there had been no Civil andWar no 14th I, Or Art 1:§ Const men, they compact equal right: declare all when “We form a social are power people, governments

that all is inherent in the all and free are founded on authority, peace, safety, happiness; they their and instituted for their and alter, reform, right government have at all times a or abolish the such manner they may proper.” think I, § See also Const Or Art 33: rights, privileges impair “This enumеration of shall not be construed to

deny people.” others retained apart a impose Compact” Quite amendment “Social on us. theory, however, repeatedly such a this court has held from not on necessary imposed that it is turn to restraints this by Oregon in order protect rights state federal law If, preserves any law in citizens their own event.4 indeed may deny conclusion that officers not communica- outside police custody tion to one taken into needed a constitutional source, it is in pertinently implicit most the constitutional I, corpus. of habeas Or Const Art guarantee 23.5 § Second, upon essay if the set its plurality gratuitous is law, federal undertaking into constitutional it should take its law, seriously. In such as 14th amend- questions federal ment, Supreme we follow the decisions of the United States Court, views, constantly not our own as is shown in the court’s See, e.g., claims. treatment of fourth amendment State 4 Scharf, As stated State v. 288 Or 454-455: at however, issues, addressing responsibility “Before such federal court’s laws, provides if first to decide the effect of the state’s own because the state what claims, deprive process by due defendant it does not her of the commanded Conversely, procedure by 14th not forbidden the United States amendment. law, contrary that fact in the state Constitution is not ‘authorized’ absence of officials; authority limits state for the Constitution the actions of take Sims, 1, 599 349, 353, v. n. these actions must be found state law. State 287 Or 305, (1979); 309, (1979); Spado, 594 State v. P2d 461 State v. 286 Or P2d 805 277, 293, (179); Scurlock, Smyth, 286 Or 593 P2d 1166 State v. 286 Or 593 P2d Heintz, 239, 255, 257-258, (1979) (1979); v. 286 Or 594 P2d 385 1159 State Greene, 337, 349, (concurring (1979) opinion); State v. 285 Or 591 P2d 1362 Flores, 273, 279, 570 (1977); (concurring opinion); v. 965 Brown State 280 Or P2d Ct., Ivory, County (1977); Dist. 280 P2d 52 State v. 278 v. Multnomah Or 570 (1977); Valdez, v. 277 561 P2d Or P2d 1039 State Or 1006 564 (1977); Florance, 169, 180-187, (1974); State v. State v. 270 Or 527 P2d 1202 Brown, (1972). 442, 453, 497 262 P2d If the state is determined to be Or 1191 law defendant, But course the issues remain to be decided. adverse federal neеdlessly interpret in a manner that would reach an court will not state law Harmon, 571, 577, Smyth, supra; v. State v. 225 Or result. State unconstitutional (1961), P2d 1048 and cases there cited.” 358 Oregonian Subsequently, principle in State ex Pub. Co. same was followed rel 611, 625 Deiz, Sterling Cupp, 277, 613 P2d Or P2d 23 v. 290 Or 123 (1981). I, Or Const Art 23:§ corpus suspended privilege in case of “The habeas shall not be unless rebellion, public safety require it.” invasion the I,Art § See also 13: person arrested, unnecessary jail, shall be treated with “No or confined

rigor.” Brown, 642, 634 plurality 291 Or P2d But the the Supreme makes no effort determine what Court has bearing held or said on the issue us. Whatever before case, Supreme might thing Court hold in such a one is certain: any Neither that court nor court familiar with federal con- “analysis” stitutional law would cite as the source of its quotation justice from a single dissenting from dismissal of appeal quotation an in a birth The plurality’s control case.6 merely pitfalls transferring large demonstrates gener- totally alities from area of into a I one law different one. do not say Supreme Court would not hold that the 14th protects person’s amendment right arrested communi- world; hope cate with the “outside” I the Court would so surely hold. But there are more relevant sources for under- liberty standing person’s imprisoned to be incom- municado compare than to it with freedom to use contraceptives or to have an abortion. That is not a serious to attempt discern and to follow the federal law.

Third, after finding a violation process law, of due plurality opinion incongruously holds a conviction resulting from that violation deprive nevertheless will not Mr. Newton of liberty process without due opinion of law. The finds that it was a violation of process deny due to Newton his requested oppоrtunity telephone to legal for advice. As I have said, this holding constitutional is unnecessary, though may it opinion correct. The then asserts proof that there is no of a “causal connection” between this denial and Newton’s sub- test, mission the breath because the record does not show lawyer that he would have or reached his what advice the lawyer given would have him. 6 plurality’s quotation Ullman, from Justice Harlan’s dissent in Poe v. 367 US 497, 543, 1752, 81 S Ct L6 Ed 2d 989 does not become more relevant because Supreme against Court contraceptives later invalidated state laws the use of against divergent abortion on theories of the 14th amendment in Griswold v. Connecticut, 1678, 14 (1965) Wade, 381 US 85 CtS L Ed 2d 510 and Roe 410 113, 93 705, 35 (1973);

US S Ct L 2dEd 147 see 291 Or at n. 10. Those issues are anything too remote from involved here. There is no need to enter into the process” controversial theories rights of “substantive due when this case involves the police custody, potential of a who is taken into imprisonment and who faces for Those, course, crimes. “liberty” are the central concerns in the 5th and 14th amendments. disingenuous; is a part

The second of that assertion advise a client not to court should assume that counsel would a negative take breath test unless he is certain of result. Contrary plurality opinion, impropriety when the counsel, a access we do interfering person’s consists with not invite either or trial courts to police “speculate” have or have might might whether counsel been unavailable Haynes, supra. State v. cooperation police. advised with Cf. improper If the state wishes to assert that interference with reason, harmless such a it must access counsel was But is demonstrating shoulder the burden of that fact. the fact case, prevent Scharf, this did not that in as officers it telephone they to a would be lawyer thought call because contrary, immaterial investigation. futile to their To the pre- an such calls they policy preventing followed official cisely to decline the test. in order forestall advice When counsel adopts policy denying a access to state enforces very that the denial purpose, for this is reasonable assume is It should purpose opposite has unless the shown. served that designed to affect and does also be obvious that the denial investigation, often the stage in a criminal affect critical stage.7 decisive custody option lineup, suspect has and in which he is If no to avoid which a counsel, exhibit, passive stage” purpose right United of a is a “critical for the (196V), Wade, Ct L Ed 2d States v. 87 S fortiori police suspect stage” on an uncounseled faces “critical when the insist arrested Supreme produce potentially As the Court decisive evidence. choice whether or

put it in Wade: adopted, organized Rights were no forces “When the Bill of there prosecutor today. and the The accused confronted the we know them marshalled, him, largely against at and the trial witnesses the evidence was contrast, machinery today’s involves critical itself. In law enforcement proceedings by prosecution pretrial at of accused the confrontations the might the trial itself accused’s fate and reduce the results well settle the where formality. recognition of modern criminal In of these realities to a mere prosecution, guarantee the Amendment to have construed Sixth our cases guarantee ‘In apply stages proceedings. The all the reads: to ‘critical’ of prosecutions, enjoy right.. . to have the shall criminal accused plain (Emphasis supplied.) The Counsel his Assistance of wording for defence.’ guarantee encompasses counsel’s assistance whenever of this thus ” necessary meaningful assure a ‘defence.’ lineups test in Wade and Gilbert or the blood US Unlike the in 388 at 224-225. California, 16 L Ed 908 S Ct 2d Schmerber 86 consent, subject’s by with law is not administered without breath test consequences legal more crucial to case. that make the choice alternative The breath test evidence this case was obtained deliberate, official interference with Mr. Newton’s efforts to lawyer, unlawfully and, call a thus obtained in the plurality opinion, contrary process Nevertheless, of to due law. opinion on maintains that a conviction based this violation of due would not On face process process. be violation due its position such is anomaly. opinion attempts explain away anomaly by disquisition a further on “com- peting policy “empirical considerations” and an prag- matic due approach,” concluding process does not need to it probably enforced this case because is not needed in order deter explanation future official violations. The does contradiction, only not resolve the deepens obvious it it. The person liberty process whose is not to be taken without due present defendant, law is the Ray Kenneth Newton. The person who, according plurality was opinion, deprived to counsel process access without due of law is the present defendant, It Mr. Newton. is Mr. Newton whom the state upon process intends convict part which a crucial process.” nоt “due process Whether the total or is not due process respect with logically depend Newton cannot on this guess policies court’s as to the future state police toward other motorists. That kind “pragmatism” has recently become way “explain,” fashionable and perhaps undermine, the Weeks8 doctrine in federal search and cases, seizure says, as Justice Tanzer I but believe it has no proper place in assuring brought each individual before a court of due process of law. The state federal do constitutions not make the individual a mere judicial instrument “policy considerations,” to be protected when a court thinks this will usefully influence protected official conduct and not when a court They thinks that will not. do invite courts process to manipulate due for the individual as a means to some other end. an approach mockery Such makes a of a guarantee government deprive any shall not person of life, liberty, or property process without due of law. US Const V, Amend Amend XIV.

Finally, prevailing opinions this case maintain question discreet on silence what is available remedy States, Weeks United US S Ct L 58 Ed 652 Newton, despite hopes the Court’s Mr. or others who position. in The truth is that the may his find themselves unlawful, agrees was an remedy for what the Court relevant unconstitutional, procedure is trial untainted even perhaps request procedure. person An arrested whose by that ordinarily wrongfully is refused telephone help for or counsel His or mistreatment. physical psychological is not a victim may only punishing is an officer who her interest not have been instructions and otherwise have followed erroneous for a being is made whole wholly inoffensive. Nor the refusal is injured by The interest that is injury. financial legal rights interest in his or her when person’s the arrested directly by the custody, injury and the threatened liberty. may remedy ask what wrongful refusal is loss of One person to seek who learns after the expects the next the Court to call counsel was request an officer’s refusal of fact that very interest remedy one that addresses the unlawful. The is remove fruits telephone protect call could which the denied, If prosecution. that is the unlawful refusal from evident, Court men- similarly remedy is and the no relevant tions none. provide subject-

To law does not up: Oregon sum motorist’s to a breath test over the ing arrested motorist may that the motorist refuse the objection. provides The law test, consequences for his or her license to drive. legal with requests use an available an arrested motorist When test, to take or refuse the telephone to obtain advice whether denied, lawfully reaffirms may not be Court request in this case. State v. premises, when

Given these held that Scharf request telephone lawyer such a one’s for advice was denied, breath test results thereafter obtained wrongfully prosecuting from not used in that the arrested could be person. statutory recognition This inference drawn from the person’s of the arrested to refuse the test was not choice unanimous, disagreement simple but remained a straightforward law which question Oregon could legislature legislature addressed if it did wished. change law, although it reexamined and amended the driving statutes under the influence of intoxicants. governing a long opinion Instead we now have and tortured which explain why Oregon seeks to the reason lets persons telephone use the arrested federal 14th compels so, Oregon amendment do the refusal permission to make the call in this case was violation of due amendment, under that process and that nevertheless is no process violation of due this on prosecute defendant evi- apparent consequence dence obtained of that refusal. Although analysis that constitutional does not command a court, majority of the its proposed shift of direction from is cause for regret. Scharf are dealing, imprisoned

We not with convicted and offenders, nor with suspected drivers of intoxication. We are dealing rights ordinary with the men and women who placed have been alleged under arrest traffic offense any other proceeding reason and detained from toward their expected intended and destinations, whose unexplained dis- appearance can ‍​‌​‌‌‌​​‌​‌​‌​‌​​​​​‌​​​‌​​‌‌​​​‌‌​‌​​​​‌‌‌​​‌​​‍cause serious concern for as others well inconvenience and trouble for themselves. A number conse- quences implicit no doubt are in statutory to take a authority custody, into authority prevent but him or her from communicating world, with the particularly outside from seeking legal counsel, obtain is not one of them.

Whether motorists are left the choice to refuse breath tests for intoxication perhaps impor- fundamental person’s tance. An advice, arrested access particu- to outside larly legal advice on a critical choice while in custody for potential prosecution, is of fundamental importance. A view interference with such access would not be unauthorized in Oregon federally but for imposed restraints carries ominous implications beyond the the “implied details of consent” I previous statutes. would adhere to our decision under they same statutes until are changed. JJ., Peterson,

Lent and join this dissent.

Case Details

Case Name: State v. Newton

Court Name: Oregon Supreme Court

Date Published: Oct 27, 1981

Citation: 636 P.2d 393

Docket Number: TC M79-783 CA 16311 and SC 27149

Court Abbreviation: Or.