State v. Durbin

• Decision Date: 13 February 2003
• Citation: 63 P.3d 576,335 Or. 183
• Parties: STATE of Oregon, Respondent on Review, v. Thomas Everett DURBIN, Petitioner on Review.
• Court: Oregon Supreme Court

63 P.3d 576

335 Or. 183

STATE of Oregon, Respondent on Review, v. Thomas Everett DURBIN, Petitioner on Review.

CR980102; CA A105880; SC S48501.

Supreme Court of Oregon.

Argued and Submitted March 1, 2002.

Decided February 13, 2003.

Beth Corbo, Deputy Public Defender, Salem, argued the cause and filed the brief for petitioner on review. With her on the brief was David E. Groom, State Public Defender.

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

Before CARSON, Chief Justice, and GILLETTE, DURHAM, RIGGS, De MUNIZ, and BALMER, Justices.²

BALMER, J.

Defendant was charged with driving under the influence of intoxicants (DUII).³ He moved to suppress the results of his breath test, arguing that the presence within earshot of the arresting officer when he consulted a lawyer by telephone before taking the breath test violated his right to counsel under the Oregon Constitution. The trial court denied defendant's motion to suppress the results of the breath test, and he was convicted after a trial to the court based on stipulated facts. In an en banc decision, the Court of Appeals affirmed, with four judges dissenting. State v. Durbin, 172 Or.App. 515, 23 P.3d 363 (2001). We allowed defendant's petition for review and now reverse the decision of the Court of Appeals.

We take the following facts from the record. Defendant was arrested for DUII after a traffic stop. The arresting officer took defendant to the county jail and began the process required to administer a breath test to determine defendant's blood-alcohol level. As discussed below, a 15-minute observation period must precede administration of a breath test. The officer began the observation period and also started a tape recorder to record his conversation with defendant. When the officer began to ask questions from an Oregon State Police form, defendant stated that he wanted to talk to a lawyer. The officer stopped questioning defendant and asked defendant if he had a lawyer. When defendant replied that he did not, the officer provided him with a list of lawyers and turned off the tape recorder. Defendant then attempted to contact by telephone a lawyer from among those on the list that the officer had provided. On the fifth try, defendant reached a lawyer who was willing to consult with him by telephone. The arresting officer remained in the room and within earshot while defendant conferred with that lawyer.

After defendant finished that telephone conversation, he agreed to continue. The officer then read to defendant from an implied consent form provided by the Department of Transportation, informing defendant that he was about to be asked to take a breath test and that he would be subject to criminal penalties if the test established that he was under the influence of an intoxicant.⁴ The officer also informed defendant of the consequences of any refusal to take a breath test and then asked defendant questions about his activities that evening. Defendant answered all the officer's questions.

After the officer finished interviewing defendant, defendant agreed to take a breath test. The results of that test showed that defendant's blood-alcohol level was .13 percent. As noted above, defendant was charged with DUII. He moved to suppress the results of his breath test, arguing that his right to counsel was violated because he was denied private consultation with counsel.⁵

At the hearing on the motion to suppress, the officer testified that he was required by law to observe defendant for 15 minutes before asking him if he wanted to take a breath test. The officer explained that, during that 15-minute period, he was required to watch and listen for any regurgitation, burping, or other action that might contaminate the breath test results.⁶ The officer also testified that he did not leave the room when defendant spoke to his lawyer because he would not have been able to "watch and listen" as required during the observation period if he had been outside the room. The trial court denied the motion to suppress the results of the breath test, concluding that the officer's presence was justified under the circumstances and did not deny defendant the right to counsel. Defendant waived his right to a jury trial and, as noted above, was convicted after a court trial on stipulated facts.

Defendant appealed, and the Court of Appeals, en banc, affirmed, holding that the arresting officer's presence in the room while defendant conferred with his lawyer did not violate defendant's right to counsel under Article I, section 11, because defendant had not requested privacy. Durbin, 172 Or.App. at 521, 23 P.3d 363. Absent such a request, the Court of Appeals held, the state need not justify the limitations that it placed on defendant's privacy in this case. Accordingly, the majority concluded, the trial court did not err in failing to suppress evidence from the breath test. Four judges dissented. They would have held that defendant did not have to make an independent request that he be allowed to consult with his lawyer privately. In their view, the officer violated defendant's right to counsel under Article I, section 11, by remaining within earshot without sufficient justification. Id. at 527, 23 P.3d 363 (Haselton, J., dissenting). We allowed defendant's petition for review.

Defendant argues that the right to consult privately with counsel is inherent in the right to counsel that Article I, section 11, provides. It follows, he contends, that the police must afford an arrested driver the opportunity to consult privately with counsel, even if the arrested driver does not make an independent request to consult privately.⁷ He also argues that, even if the police may limit an arrested driver's right to consult privately in some circumstances, the only justification offered here—that the observation period already had begun—is insufficient.

The state responds that the arrested driver enjoys only a limited right to seek legal advice in such circumstances and that that right does not include the right to confer with counsel in private. Alternatively, the state argues that, if the right to counsel at that stage of the criminal proceeding includes the right to confer with counsel in private, then the arrested driver at least must request privacy before the police will be required to provide it, and defendant failed to make that request. Finally, the state contends that any limitation on defendant's right to consult with his lawyer privately was justified because the officer already had begun the 15-minute observation period that must precede the breath test.

We agree with the parties that our analysis of this right-to-counsel question concerning a driver's decision to submit to a breath test must begin with this court's decision in State v. Spencer, 305 Or. 59, 750 P.2d 147 (1988). In Spencer, an arrested driver, upon being advised of the implied consent law and of the consequences of refusing to take a breath test, asked the police officer if he could call his lawyer before deciding whether to submit to the test. After the officer told him that he could not call his lawyer, the driver submitted to the breath test. The driver later moved to suppress the results of that test, arguing that his right to counsel under Article I, section 11, had been violated.

This court first considered whether an arrested driver who has not been charged formally with a crime enjoys the right to counsel under Article I, section 11, which guarantees the right to counsel "in all criminal prosecutions." This court noted that "[a] person taken into formal custody by the police on a potentially criminal charge is confronted with the full legal power of the state, regardless of whether a formal charge has been filed." The court, therefore, concluded that, when that custody is "complete," the person is "ensnared in a `criminal prosecution'" for purposes of Article I, section 11, and enjoys the right to counsel. 305 Or. at 74,750 P.2d 147.

The Spencer court noted, however, that the right to counsel at that stage of the criminal prosecution is not as broad as the right to counsel that an accused enjoys at trial. The court explained:

"The evanescent nature of the evidence the police seek to obtain may justify substantially limiting the time in which the person may exercise his or her Article I, section 11, right, but it does not justify doing away with it.

"We hold that, under the right to counsel clause in Article I, section 11, an arrested driver has the right upon request to a reasonable opportunity to obtain legal advice before deciding whether to submit to a breath test."

Id. at 74-75, 750 P.2d 147.

Because, in Spencer, the police had given the arrested driver no opportunity to speak to his lawyer, that case did not require that this court discuss whether the police could place limits—other than a time limit—on an arrested driver's opportunity to obtain legal advice without running afoul of Article I, section 11. Defendant argues that, under Spencer, the only permissible limitation is as to the period of time within which the arrested driver has the opportunity to consult with counsel, because it is only such a limitation that is justified by the "evanescent nature of the evidence." Therefore, he argues, once the arrested driver invokes the right to counsel, the police must provide the opportunity to consult with counsel in private because such private consultation is inherent in the right to counsel. The state counters that other "practical necessities inherent in" the administration of the breath test justify limitations on the arrested driver's opportunity to consult with counsel, including, as in this case, the officer's need to observe the arrested driver for an uninterrupted period of 15 minutes before administering...