State v. Brandes
| Decision Date | 24 February 2022 |
| Docket Number | A169204 |
| Citation | 317 Or.App. 672,506 P.3d 431 |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Ryan John BRANDES, Defendant-Appellant. |
| Court | Oregon Court of Appeals |
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Stacy M. Du Clos, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Leigh A. Salmon, Assistant Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Shorr, Judge, and James, Judge.
Defendant appeals a judgment convicting him of felony driving under the influence of intoxicants (DUII), ORS 813.0101 (Count 1); reckless driving, ORS 811.140 (Count 2); and recklessly endangering another person, ORS 163.195 (Count 3). The court sat as factfinder on Counts 2 and 3; the verdict on Count 1 was based on a unanimous jury verdict. Defendant asserts three bases for reversal of those verdicts.
First, defendant argues that, on Count 1, the trial court erred in instructing the jury that it could reach a nonunanimous verdict and that the error entitles him to reversal because it constituted structural or plain error. Although we agree that the jury instruction was erroneous under Ramos v. Louisiana , 590 U.S. ––––, 140 S. Ct. 1390, 206 L. Ed. 2d 583 (2020), for the reasons explained by the Oregon Supreme Court in State v. Flores Ramos , 367 Or. 292, 319, 478 P.3d 515 (2020), and State v. Chorney-Phillips , 367 Or. 355, 359, 478 P.3d 504 (2020), we reject defendant's structural and plain error arguments. Defendant is therefore not entitled to reversal on that basis.
Next, defendant argues that the trial court erred in denying his motion to suppress evidence of his refusal to take a breath test and in instructing the jury that it could consider that refusal as evidence, asserting two legal grounds. First, defendant contends that the admission of his breath-test refusal violated his Article I, section 9, right to be free from warrantless searches because, under State v. Banks , 364 Or. 332, 434 P.3d 361 (2019) ( Banks II ), his refusal constituted the invocation of his constitutional right to refuse to consent to a warrantless search and was therefore inadmissible. Second, defendant argues that his Article I, section 12, Miranda rights were violated, because the officer's request that he take a breath test constituted improper interrogation after he had invoked his right to counsel. The state responds that defendant failed to preserve the arguments he makes on appeal and that, in any event, the trial court did not commit any error, plain or otherwise.
As we will explain, we conclude that defendant's arguments are preserved and that his breath test refusal was inadmissible under Article I, section 9, which obviates the need to address his Article I, section 12, argument. We therefore reverse and remand.
In reviewing the trial court's denial of a motion to suppress, we accept the trial court's factual findings that are constitutionally supported by the evidence and determine "whether the trial court applied legal principles correctly to those facts." State v. Ehly , 317 Or. 66, 74-75, 854 P.2d 421 (1993). We limit our discussion of the facts to the record that developed at the pretrial hearing, State v. Pitt , 352 Or. 566, 575, 293 P.3d 1002 (2012), noting where certain facts were in dispute and providing more detailed facts as they become relevant in our discussion. Further, although resolution of this case turns on defendant's Article I, section 9, argument, we provide the relevant background facts related to defendant's Article I, section 12, argument, as well as defendant's Article I, section 11, argument that he raised below but abandons on appeal, as necessary context for the state's preservation challenge.
Officer Boyll arrested defendant for DUII and, after taking him into custody, advised him of his Miranda rights. Defendant indicated that he understood his rights but did not ask to speak to an attorney or invoke his right to remain silent at that point. Boyll transported defendant to the police station.2
At the station, Boyll read defendant his "implied consent" under the implied consent laws3 and then, at defendant's request, brought him to a secluded room equipped with a phone book and an Oregon State Bar directory and afforded him the opportunity to call an attorney. Boyll then placed defendant back in handcuffs, escorted him to a different room, and asked him to take a breath test. Defendant made four or five attempts to provide a breath sample but, based partially on defendant's physical conduct, Boyll believed that defendant was intentionally preventing the machine from recording a breath sample and ultimately concluded that defendant had refused the breath test.
Before trial, defendant moved to suppress his breath-test refusal on three legal grounds, all raised in written memoranda. First, defendant argued that Boyll's request that he take a breath test after placing him in custody and after he had invoked his right to counsel constituted unlawful interrogation under Article I, section 12. Second, defendant argued that his right to counsel under Article I, section 11, was violated because Boyll did not provide him with sufficient time to consult with an attorney before requiring him to decide whether to take a breath test. See State v. Spencer , 305 Or. 59, 74-75, 750 P.2d 147 (1988) ().
Third, defendant argued that his right under Article I, section 9, to refuse a warrantless search would be violated by admission of his breath-test refusal. Although he did not contest that his actions amounted to refusing to take the breath test, he maintained that, in refusing, he was "[d]eclining to supply consent to a warrantless search," which "is not the same as obstructing a valid search." He contended that, "[a]lthough a person does not have the right to resist the government in obtaining evidence if they have a warrant nor [if a] warrant exception [applies], the person does not have to consent to the search and seizure." Here, according to defendant, Boyll chose not to rely on a warrant or warrant exception to conduct the search of his breath, but instead relied on defendant's consent—yet defendant had a constitutional right to withhold that consent without it being used as substantive evidence of his guilt. Defendant noted that, although this court had decided against his Article I, section 9, argument in State v. Banks , 286 Or. App. 718, 401 P.3d 1234 (2017) ( Banks I ), rev'd , 364 Or. 332, 434 P.3d 361 (2019), the Oregon Supreme Court had accepted review in that case to address that argument.
Defendant later filed a supplemental memorandum in support of his motion to suppress, alerting the court that the Oregon Supreme Court had accepted review of State v. Koch , 289 Or. App. 642, 412 P.3d 1216 (2017) ( Koch I ), rev dismissed as improvidently allowed , 365 Or. 658, 451 P.3d 1016 (2019) ( Koch II ), to resolve whether a request to take a breath test constitutes interrogation under Article I, section 12. In Koch I , which we affirmed without opinion, the defendant had argued in relevant part that State v. Swan , 276 Or. App. 192, 201, 366 P.3d 802 (2016)( Swan I ) , rev'd on other grounds , 363 Or. 121, 420 P.3d 9 (2018)( Swan II ) , where we held that asking a suspect to take a breath test does not constitute interrogation under Article I, section 12, was wrongly decided. Defendant here attached to his supplemental memorandum, as legal support, the defendant's brief that was filed in Koch I .
At the hearing on defendant's motion to suppress, Boyll testified to the circumstances surrounding defendant's request to speak to an attorney, giving conflicting testimony as to whether defendant had asked to make a phone call generally, or whether he had specifically requested to speak to an attorney. Further, the state elicited testimony from Boyll regarding the amount of time he gave defendant to consult with an attorney, the details of how he had advised defendant of his Miranda rights, defendant's response that he understood those rights, and that defendant did not invoke his right to remain silent or request an attorney at the time he was advised of those rights. Boyll also testified to the circumstances surrounding his request that defendant take a breath test and defendant's response. In response to the question, "How was [defendant's] behavior after he said he would take the breath test?" Boyll testified as follows:
In closing, defendant argued that he was not given a reasonable amount of time to consult with an attorney before deciding whether to take the breath test. The court denied defendant's motion and his request for findings, commenting, "I trust our appellate courts to figure it out."
At trial, Boyll testified to the circumstances surrounding defendant's breath test and that he considered defendant's conduct to constitute a refusal, and the state submitted the Implied Consent Combined Report, which indicated that defendant had refused the breath test. Over defendant's...
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