State v. Martinez

• Decision Date: 18 June 2014
• Docket Number: A150536.,231020410
• Citation: 328 P.3d 1277,263 Or.App. 658
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Jose Antonio MARTINEZ, Defendant–Appellant.
• Court: Oregon Court of Appeals

263 Or.App. 658

328 P.3d 1277

STATE of Oregon, Plaintiff–Respondent,

v.Jose Antonio MARTINEZ, Defendant–Appellant.

231020410; A150536.

Court of Appeals of Oregon.

Submitted Feb. 18, 2014.

Decided June 18, 2014.

Peter Gartlan, Chief Defender, and Lindsey K. Detweiler, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Leigh A. Salmon, Assistant Attorney General, filed the brief for respondent.

Before SERCOMBE, Presiding Judge, and HADLOCK, Judge, and TOOKEY, Judge.

TOOKEY, J.

Defendant, who was arrested twice in a four-hour period for driving under the influence of intoxicants (DUII), ORS 813.010, challenges a judgment of conviction for two counts of DUII.¹ He raises three assignments of error on appeal. We reject without discussion defendant's second and third assignments of error, in which he claims that the trial court violated his right to self-representation. We write to address defendant's first assignment of error, in which he contends that the trial court erred when it denied his motions to suppress statements that he made to a drug recognition expert (DRE) and the evidence derived from those statements. Specifically, defendant argues that law enforcement officers violated his right to counsel under Article I, section 12, of the Oregon Constitution² and the Fifth Amendment to the United States Constitution ³ by interrogating him without the assistance of counsel; according to defendant, he invoked those rights by asking to speak to an attorney before the administration of a breath test. The state responds that defendant did not invoke his right to the assistance of counsel under Article I, section 12; ⁴ rather, by responding to the trooper's offer of privacy to make a phone call, defendant merely took advantage of his limited right to a reasonable opportunity to obtain legal advice before deciding whether to submit to a breath test under Article I, section 11, of the Oregon Constitution.⁵ For the reasons explained below, we affirm.

We review a trial court's “denial of a motion to suppress for legal error and defer to the trial court's findings of historical fact if there is sufficient evidence to support them. Consistently with that standard, we take the following facts from the record of the suppression hearing.” State v. Mitchele, 240 Or.App. 86, 88, 251 P.3d 760 (2010) (internal citation omitted).

Trooper Ratliff, a certified DRE, stopped defendant for failure to drive within the lane of traffic. Officer Gerig provided cover at the stop. Ratliff observed that defendant's face was pale, his speech was slurred, and his pupils were constricted and exhibited little to no reaction to light. Ratliff conducted a brief investigation, read defendant Miranda warnings, and arrested him for DUII. Defendant did not, at that time, ask to speak to an attorney. Defendant did not invoke his right to remain silent.

Ratliff transported defendant to the Oakridge Police Department and escorted him to the Intoxilyzer room. After Ratliff and defendant sat down, Ratliff recited the standard “speech” that he gives to every DUII suspect, informing him “of his limited right to use a telephone prior to the administration of a breath test”:

“I told him he could make a phone call if he wanted to. He could make * * * as many phone calls as he wants. The only thing I do ask is if he chooses to call an attorney to let me know so I can give him some privacy.”

In response, defendant “asked * * * to speak to an attorney,” ⁶ so Ratliff provided him with privacy, a phone, and an unrecorded phone line.

Approximately 20 minutes later, Ratliff recontacted defendant, asked if he would be willing to take a breath test, and read him the implied consent form. Defendant agreed to provide a breath sample and took the breath test. At no time did defendant indicate that he did not want to take a breath test or that he was unwilling to answer questions.

Ratliff contacted Officer Dalton, who is also a certified DRE, and Dalton completed a 12–step DRE evaluation of defendant.⁷ As part of that evaluation, Dalton asked defendant questions about his drug use, and defendant stated that he had consumed a number of controlled substances that day. Dalton also asked defendant to provide a urine sample, and defendant did so. Dalton concluded that defendant “was under the influence of a CNS depressant and a narcotic analgesic.”

Defendant was released from custody, and Ratliff drove him to a motel. Ratliff told defendant not to drive. About an hour later, Gerig saw defendant get into a vehicle and drive away. Gerig stopped defendant and, after some conversation, read him Miranda warnings. Defendant was again arrested and transported to the police department, where Ratliff conducted a second DRE evaluation of defendant.

Before trial, defendant moved to suppress “all statements made by Defendant after his invocation of his Fifth and Sixth Amendment rights in the form of his request to call an attorney and his calling an attorney by phone during his first arrest and any such statements made during his second arrest before he was Mirandized in the second arrest.” Defendant also moved to suppress “the drug recognition expert analysis and Officer Dalton's opinion generated thereby for the reason that without the statements made after Defendant's invocation and during the protocol, the protocol is incomplete and therefore inadmissible.”

At a pretrial hearing on defendant's motions, Ratliff testified that he told defendant about his “opportunity to make a phone call” based on DUII case law:

“If you review current case law regarding DUI, I need to tell him that he can call an attorney, and I'm also required to tell him that he's going to be given privacy. And he needs to be told in a manner that doesn't create a chilling effect in order for him to feel that I'm going to use that against him in any way, which is why I tell them they have the opportunity to make a phone call.

“I tell them they can make as many as they want. That's my personal thing. I don't care how many they make. But I do tell them that if they choose to call an attorney, let me know so I can give them privacy. Because it's the most—it's the least threatening manner in which I—I can do that.”

Ratliff further testified that when defendant “asked * * * to speak to an attorney” after hearing the standard DUII “speech,” Ratliff did not believe defendant to be invoking his right to remain silent or accompanying right to the assistance of counsel. Rather, Ratliff understood defendant to be invoking his limited right to speak to an attorney prior to the administration of a breath test. Ratliff further testified that defendant did not mention an attorney in any other context, and did not do anything to make him believe that he was invoking his right to remain silent or accompanying right to counsel. Dalton testified that defendant did not indicate at any time during the DRE protocol that he was invoking the right to remain silent or the accompanying right to counsel, or use the word “counsel” or “attorney.”

Defendant also testified, and his testimony differed in many respects from that of Ratliff and Dalton. According to defendant, he asked Ratliff to call an attorney after he took the breath test. Defendant testified that he called “about four” lawyers but could not get an attorney because it was late at night. He further testified that he tried to tell Dalton that he had asked for an attorney, “but she got mad and—and—and—she started screaming at [him].” When asked whether his desire to talk to an attorney went “beyond the question of whether or not to take a breath test[,]” defendant replied, “No.” Defendant then testified that he had wanted to speak to an attorney to ask general questions about his case. When defendant was asked whether, during the reading of Miranda warnings, he understood Ratliff to say that defendant did not have to answer any questions without an attorney, defendant replied, “That was—that was like an hour earlier, but I didn't remember it.”

The trial court denied defendant's motions to suppress. The trial court first found Ratliff's and Dalton's testimony to be credible, both by demeanor and in substance. It then found defendant's testimony to be not credible, stating:

“I do not find, based on demeanor and substance, [defendant's] testimony about what occurred that evening to be credible. If not intentionally misleading, it is, at the end of the day, insufficient. Grossly insufficient for me to find, from his testimony, that anything that happened that evening comes close to that which [defendant] testified here on the stand.”

The trial court also found that, although defendant testified that he wanted to speak to an attorney to ask general questions about his case, defendant “never communicated something like that to anybody.” The trial court concluded:

“Trooper Ratliff offered [defendant] the opportunity to make a phone call prior to administering the breath test, and under State v. Smalls [, 201 Or.App. 652, 120 P.3d 506 (2005), rev. den.,340 Or. 158, 130 P.3d 787 (2006),] and State v. Matviyenko [, 212 Or.App. 125, 157 P.3d 268 (2007),] that opportunity to contact an attorney prior to being administered a breath test is a limited opportunity that the officer must provide to allow someone to consult with an attorney privately.

“That does not extend and is not construed by this Court to be an unequivocal invocation of one's right to counsel. There was none in this case, and no actions on the part of [defendant] after the giving of Miranda rights would suggest that he invoked those rights to counsel.”

Accordingly, defendant's statements, as well as the DRE evidence that was based, at least in part, on those statements, were admitted at trial, and the jury found defendant guilty of DUII.

Defendant argues on appeal that the trial court erred when it denied...