State v. Ohm

• Decision Date: 10 December 2008
• Docket Number: D052398T.,A130976.
• Citation: 197 P.3d 1136,224 Or. App. 390
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Allison Nicole OHM, Defendant-Appellant.
• Court: Oregon Court of Appeals

197 P.3d 1136

224 Or. App. 390

STATE of Oregon, Plaintiff-Respondent, v. Allison Nicole OHM, Defendant-Appellant.

D052398T.

A130976.

Court of Appeals of Oregon.

Argued and Submitted on August 06, 2008.

Decided December 10, 2008.

Ben Eder argued the cause and filed the briefs for appellant.

Rolf C. Moan, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before SCHUMAN, Presiding Judge, and ORTEGA, Judge, and SERCOMBE, Judge.

SCHUMAN, P.J.

Defendant appeals a judgment of conviction for driving under the influence of intoxicants (DUII), ORS 813.010, assigning error to the trial court's denial of her motion to suppress evidence that she refused to submit to a breath test. She argues that evidence of her refusal was inadmissible for two reasons: first, because the refusal occurred without the advice of counsel and was therefore fatally tainted; and second, because she had a constitutional right to refuse the test and the state cannot use the invocation of a constitutional right as evidence of guilt. We rejected the second argument in State v. Gefre, 137 Or.App. 77, 83-84, 903 P.2d 386 (1995), rev. den., 323 Or. 483, 918 P.2d 848 (1996), and again in State v. Greenough, 216 Or.App. 426, 430-31, 173 P.3d 1227 (2007), rev. den., 344 Or. 280, 180 P.3d 702 (2008), and we here reject it yet again without further discussion. We agree with defendant that the evidence of her refusal resulted from an uncounselled decision, but we conclude that the error was harmless. We therefore affirm.

The relevant facts are not in dispute. Officer Schneider arrested defendant for DUII. At the police station, he provided her with a telephone, telephone books, and her own cell phone. He then asked her if she would take a breath test. According to his testimony,

"[a]t first she said she didn't know what to do, that she wanted to ask someone. And I asked her if she wanted to ask someone what to do, and she said yes. And I told her again that she was free to use those phones and phone books to call anybody she wanted to if she wanted to ask for advice; at which point she told me she did not want to call anyone."

What happened next is captured in the following colloquy between defense counsel and the officer:

"[COUNSEL]: Did you go then and say, I'll — if you want to make a call, I'll leave the room so you can talk in private?

"[OFFICER SCHNEIDER]: No, I did not.

"[COUNSEL]: Okay. Did you offer her privacy?

"[OFFICER SCHNEIDER]: No."

Schneider further testified that, after the 15-minute observation period that is required before conducting a breath test, "I asked her again what she wanted to do, if she wanted to take the breath test, and at that time she told me, and I quote, `I don't want to take the test,'" a statement that Schneider recorded as a refusal. At a pretrial hearing, defendant submitted a motion to suppress evidence of her refusal to submit to a breath test. The court denied that motion, and defendant was subsequently convicted by a jury.

On appeal, defendant renews her argument that she was denied her right to counsel under Article I, section 11, of the Oregon Constitution¹ because she was not afforded an opportunity to consult an attorney in private before deciding whether to take the breath test and that evidence of her refusal should therefore have been suppressed.² We agree with defendant that she was not afforded her right to counsel. In State v Spencer, 305 Or. 59, 74-75, 750 P.2d 147 (1988), the Supreme Court held 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." The court expanded on its description of that right in State v. Durbin, 335 Or. 183, 193-94, 63 P.3d 576 (2003), holding "that a driver arrested for DUII has, upon invoking the right to counsel, the right to a reasonable opportunity to consult privately with counsel before deciding whether to submit to a breath test." (Emphasis added.) We applied that holding in State v. Matviyenko, 212 Or.App. 125, 127-30, 157 P.3d 268 (2007), concluding that, where the defendant stated that he wanted to call an attorney and the officer provided him with a telephone and telephone books but did not leave the room the officer's presence in the room interfered with the defendant's right to counsel. We stated,

"[A]n officer may be justified in remaining in the room until contact with an attorney is made in order to ensure that the suspect actually calls an attorney rather than using the telephone for some inappropriate purpose. However, when a DUII arrestee has asked to call an attorney, if an officer intends to remain seated in the room until the call is made, we think that the onus is properly on the officer to inform the arrestee — before the call is made — that, once he or she contacts an attorney, privacy will be afforded."

Id. at 130, 157 P.3d 268.

The right delineated by these cases is the right to have an opportunity to consult with counsel. Defendant asserts that a driver arrested for DUII has the right to consult privately not just with counsel, but with anyone. She relies on language from State v. Newton, 291 Or. 788, 636 P.2d 393 (1981), and Moore v. Motor Vehicles Division, 293 Or. 715, 652 P.2d 794 (1982). In Newton, 291 Or. at 807, 636 P.2d 393, the court referred to "[f]reedom of an arrested person to communicate" and "liberty to communicate as he chose"; in Moore, 293 Or. at 719, 652 P.2d 794, the court described Newton as "holding that an arrested person is entitled to communicate with counsel or others and that the police must reasonably accommodate a request to do so unless it would interfere with their duties." Neither of these cases involves a defendant's right to counsel, under either the federal or Oregon constitution. Only three justices relied on a constitutional source in Newton; one justice concurred on statutory grounds, Newton, 291 Or. at 813, 636 P.2d 393 (Tongue, J., specially concurring), and three dissented, id. at 815, 818, 636 P.2d 393 (Lent, Linde, and Peterson, JJ., dissenting). The plurality relied not on the right to counsel, but on the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Id. at 806-07, 636 P.2d 393. In Moore, the court reached no constitutional question; it did, however, state hypothetically that an unjustified refusal to allow a person to speak with a lawyer deprives that person of "liberty," which we take as a reference, as in the Newton plurality opinion, to the Fourteenth Amendment. Thus, to the extent that Newton and Moore refer to a right to consult with a nonlawyer, that right derives from the Due Process Clause.

Durbin and Matviyenko, on the other hand — the cases holding that the right to consult with counsel implies the right to do so in private — rely on Article I, section 11, of the Oregon Constitution, and the implied privacy right is inextricably linked to the fact that the consultation is with an attorney; a driver arrested for DUII has the right to consult privately with counsel because "confidentiality is `inherent' in the right to counsel." Durbin, 335 Or. at 190, 63 P.3d 576. That is so because "the purpose of the lawyer-client privilege cannot be fulfilled unless the communications between a client and a lawyer are confidential." Id. (emphasis added). Thus, defendant correctly asserts that, under Newton and Moore, a driver arrested for DUII "is entitled to communicate with counsel or others and * * * the police must reasonably accommodate a request to do so unless it would interfere with their duties." Moore, 293 Or. at 719, 652 P.2d 794. Police must reasonably accommodate such a request because "[c]ommunication may be the means to security release, advice, reassurance of one's family or associates, or professional assistance." Newton, 291 Or. at 807, 636 P.2d 393. Insofar as the communication is not with an attorney, it does not necessarily include an inherent right to confidentiality. Thus, a driver arrested for DUII has the right, upon request, to consult with a lawyer or a nonlawyer, but to consult privately only with counsel. Accord State v. Veatch, 223 Or.App. 444, 196 P.3d 45 (2008) (no right to private call to nonlawyer even if purpose of call is to locate lawyer).

The question in this case, therefore, is whether defendant invoked her right to counsel when she told the police officer that she "wanted to ask someone" for advice before deciding whether to take the breath test. If a suspect makes an equivocal invocation of the right to counsel under Article I, section 12,³ police are required to ask follow-up questions to determine what the suspect meant before proceeding with interrogation. State v. Charboneau, 323 Or. 38, 54, 913 P.2d 308 (1996). Similarly, we conclude that if a driver arrested for DUII makes an equivocal invocation of the right to counsel under Article I, section 11, police must ask follow-up questions to determine whether they must inform the driver that, once he or she contacts an attorney, privacy will be afforded. In determining whether a defendant's statement is an equivocal invocation, we view the statement in light of the totality of the circumstances at and preceding the time that it was made, "to ascertain whether a reasonable officer in the circumstances would have understood that defendant was invoking [her] rights." State v. Holcomb, 213 Or.App. 168, 176, 159 P.3d 1271, rev. den., 343 Or. 224, 168 P.3d 1155 (2007).

We conclude that, under the circumstances here, a...