State v. Durbin

• Decision Date: 21 February 2001
• Citation: 23 P.3d 363,172 Or. App. 515
• Court: Oregon Court of Appeals
• Parties: STATE of Oregon, Respondent, v. Thomas Everett DURBIN, Appellant.

23 P.3d 363

172 Or. App. 515

STATE of Oregon, Respondent, v. Thomas Everett DURBIN, Appellant.

(CR980102; CA A105880).

Court of Appeals of Oregon, En Banc.

Argued and Submitted November 29, 2000.

Resubmitted January 10, 2001.

Decided February 21, 2001.

Beth Corbo, Deputy Public Defender, argued the cause for appellant. With her on the brief was David E. Groom, Public Defender.

Douglas F. Zier, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before DEITS, Chief Judge, and EDMONDS, LANDAU, HASELTON, ARMSTRONG, LINDER, WOLLHEIM, KISTLER, and BREWER, Judges.

Resubmitted en banc January 10, 2001.

BREWER, J.

Defendant appeals from his conviction for driving under the influence of intoxicants (DUII). ORS 813.010. He contends that the trial court erred in denying his motion to suppress the results of an Intoxilyzer test, because he was denied the right to a private consultation with counsel before the administration of the test. We affirm.

On February 22, 1998, defendant was stopped and arrested by Officer Cuellar of the Prineville police department for driving under the influence of intoxicants. Cuellar transported defendant to the Crook County Jail. After booking, Cuellar placed defendant in the processing room and began a 15-minute observation period before administration of an Intoxilyzer breath test.¹ Cuellar started an audio recording tape in order to record his conversation with defendant. When Cuellar began to question defendant from an Oregon State Police form, defendant stated that he was "pleading the Fifth." The officer stopped questioning defendant at that point and asked defendant if he had an attorney. Defendant replied, "No." Cuellar then provided defendant with a list of attorneys whom defendant could contact. Defendant said, "Okay." Cuellar turned off the tape recorder and assisted defendant in reviewing the attorney list. Defendant then used a telephone in the processing room to call attorneys from the list while Cuellar remained present. Two attorneys declined to represent defendant, and he was unable to reach two others. Finally, defendant reached attorney James Larson, with whom he spoke for approximately three minutes. Cuellar remained in the room, within earshot, while defendant consulted with Larson, because Cuellar was still observing defendant for the required pretest period. Cuellar testified that he was required both to watch and to listen as part of the observation protocol. He also testified that he could not have left the room and observed defendant through a window because, if defendant had turned away from him, he could not have observed whether defendant was regurgitating.

After the phone call to Larson, Cuellar asked defendant if he was ready to proceed, and defendant answered in the affirmative. Cuellar then advised defendant of his rights under the Implied Consent Law, see ORS 813.130, and asked if defendant would take the Intoxilyzer test. Defendant consented to take the breath test and also answered questions asked by the officer relating to the test. Defendant was then charged with DUII.

Defendant moved to suppress the breath test results, arguing that his right to consult with an attorney under Article I, section 11, of the Oregon Constitution, was violated by the officer's presence in the room during defendant's phone consultation with Larson.² The trial court denied the motion to suppress, and defendant appeals from his conviction after a stipulated facts trial.

On appeal, defendant renews his contention that Cuellar's presence during his conversation with his attorney violated his right to a private consultation with counsel and that the trial court, accordingly, erred in denying his motion to suppress. We review appeals from breath-test suppression rulings for errors of law. ORS 138.220; State v. Riddle, 149 Or.App. 141, 144, 941 P.2d 1079, rev. den. 326 Or. 68, 950 P.2d 892 (1997). Article I, section 11, of the Oregon Constitution, requires that a driver accused of DUII be afforded a reasonable opportunity to consult with counsel before deciding whether to submit to a breath test. State v. Spencer, 305 Or. 59, 74-75, 750 P.2d 147 (1988). The right to consult with counsel in a criminal DUII setting includes the right to a private consultation. State v. Penrod, 133 Or.App. 454, 457, 892 P.2d 729 (1995); see also Riddle, 149 Or.App. at 146,

941 P.2d 1079. The degree of privacy allowed may be limited in order to ensure the performance of an accurate breath test, or it may be limited because of security considerations. Penrod, 133 Or. App. at 457,

892 P.2d 729; State v. Goss, 161 Or.App. 243, 248, 984 P.2d 938 (1999). However, the state must justify both the necessity and the extent of the limitation under the particular circumstances. Id.

The state argues that it was not required to justify any limitation on defendant's right to a private consultation with counsel, because there is no evidence that defendant ever requested privacy. The state notes that Cuellar³ did not testify that either defendant or Larsen asked him to leave the room or to move out of hearing range of defendant's voice during the telephone conversation. According to Cuellar, when defendant finished the consultation, he told the officer that he was ready to proceed and consented to take the Intoxilyzer test. Under those circumstances, the state asserts that the officer was not required to afford defendant a private consultation by leaving the room or otherwise moving out of earshot. Defendant responds that the officer was required to provide him with privacy even though he did not request it. In support, defendant relies on Penrod, Riddle and Goss. Defendant's reliance on those cases is misplaced. Although they demonstrate that "confidentiality is inherent in the right to consult with counsel," Penrod, 133 Or.App. at 457, 892 P.2d 729, they do not hold or suggest that privacy must be provided if it is not requested.

In Penrod, we reversed a trial court ruling denying the suppression of the defendant's refusal to take a breath test. The defendant was permitted to confer with an attorney by telephone before she was asked to take the breath test. The attorney asked to speak with the attending officer. The attorney asked the officer to leave the room to allow the defendant to have a confidential conversation with him. The officer declined to leave. The defendant then refused to take the breath test "`due to [her] not being able to have a private talk with [her] attorney.'" Id. at 456, 892 P.2d 729. After determining that the state had not justified the limitation the officer placed on the defendant's right to a private consultation, we held that the defendant was not given a "reasonable opportunity to obtain legal advice before deciding whether to submit to a breath test, and evidence of her refusal to take the breath test should have been suppressed." Id. at 460, 892 P.2d 729.

In Riddle, the attending officer permitted the defendant to contact her attorney on a recorded telephone line. When the defendant's attorney returned her call, he asked the officer to allow him to speak to the defendant outside of the officer's presence on an unrecorded line. 149 Or.App. at 143-44, 941 P.2d 1079. The officer responded that he could not leave the room and that no secure line was available. The defendant then conferred with her attorney despite the officer's presence and ultimately agreed to take a breath test. Id. at 144, 941 P.2d 1079. We affirmed the trial court's suppression of the test results, emphasizing that, by recording the attorney-client communication, the state "committed a serious infringement" on the defendant's right to a private consultation. Id. at 147, 941 P.2d 1079. In Goss, we affirmed the trial court's denial of the defendant's motion to suppress evidence of his refusal to take a breath test. When the defendant asked to talk to his attorney by phone at the police station, the officer dialed the attorney's number, handed the phone to the defendant, and remained in the room. 161 Or.App. at 246,984 P.2d 938. The defendant briefly conferred with his attorney in the officer's presence and then asked for privacy. Id. The officer refused to leave, because he was observing the defendant during the pretest period and also because of security reasons. Consequently, the defendant refused to take the breath test. We concluded that the trial court erred in denying the suppression motion, because the "state failed to justify the complete denial of defendant's ability to consult privately with his attorney, and that lack of privacy affected defendant's refusal to take the test." Id. at 250, 984 P.2d 938. Although we affirmed the defendant's conviction, we did so based on a harmless error analysis. Id. at 250-51, 984 P.2d 938.

The unifying fact in each of the foregoing cases is the attending officer's refusal to permit a private consultation that was specifically requested by the defendant or his attorney. In each case, there was evidence that the denial of privacy affected the defendant's decision whether to take the breath test, Penrod; Goss, or, alternatively, the court presumed that the taping of the conversation—after an express request for privacy—chilled the defendant's ability to consult with counsel. Riddle. None of those circumstances existed in this case. There is no evidence that defendant or his attorney requested a private conversation.⁴ Nor is there any evidence suggesting that defendant's communication with his attorney was impaired or that his decision to take the breath test was influenced by Cuellar's presence. Defendant does not contend otherwise. Instead, his argument reduces to the proposition that, because defendant was talking to his attorney, the officer had an independent duty to avoid overhearing defendant's side of the conversation, despite the fact that...