State v. Scharf

• Decision Date: 22 January 1980
• Docket Number: T-82694
• Citation: 605 P.2d 690,288 Or. 451
• Parties: , 288 Or. 621 STATE of Oregon, Respondent, v. Nancy Lee SCHARF, Petitioner. TC; CA 10121; SC 25855.
• Court: Oregon Supreme Court

Page 690

605 P.2d 690

288 Or. 451, 288 Or. 621

STATE of Oregon, Respondent, v. Nancy Lee SCHARF, Petitioner.

TC T-82694; CA 10121; SC 25855.

Supreme Court of Oregon, In Banc.

Argued and Submitted April 3, 1979.

Reargued Dec. 3, 1979.

Decided Jan. 22, 1980.

Mark Irick, of Hayter, Shetterly, Noble & Weiser, Dallas, argued the cause on December 3, 1979, for petitioner. Philip Hayter, Dallas, argued the cause on April 3, 1979, and filed a brief for petitioner.

Robert C. Cannon, Asst. Atty. Gen., Salem, argued the cause for respondent. On the brief were James A. Redden, Atty. Gen., Al J. Laue, Sol. Gen. and Donald L. Paillette, Asst. Atty. Gen.

James A. Redden, Attorney General, Walter L. Barrie, Solicitor General, and Robert C. Cannon, Assistant Attorney General, Salem, for petition on rehearing.

No appearance contra, on rehearing.

LINDE, Justice.

Convicted of driving under the influence of intoxicants (DUII), ORS 487.540, defendant appealed on the ground that the trial court admitted evidence of a chemical test of her breath that was administered after her arrest and after she was denied permission to telephone her attorney for advice. The Court of Appeals affirmed the conviction by an equally divided court, 36 Or.App. 345, 585 P.2d 23 (1978), and we allowed review. The issue to be decided is whether the prosecution in a DUII case may rely on a defendant's assent to undergoing such a breath test when defendant submitted to the test only after demanding and being denied an opportunity to seek advice. We hold that under such circumstances the test results are not obtained with the defendant's voluntary and informed assent as contemplated by law and therefore reverse.

The issue arises from simple and undisputed facts. A state police officer stopped defendant's car and decided to arrest her for driving under the influence of intoxicants. The officer informed her that she had the right to remain silent, the right to consult an attorney and to have the attorney present before being questioned, if she wished, and the right to terminate questioning at any time. She asked to telephone an attorney and was told that she could do so at the police station. Upon arrival at the station, the officer advised defendant of her choice to take or refuse a "breathalizer" test and asked whether she consented to the test. Defendant repeated her requests for permission to call her attorney before deciding whether to take the test. Her requests were denied. Ultimately she submitted to the test, the results of which were later used, over her objection, to convict her of the offense.

As has become characteristic of criminal cases in recent years, the parties couch much of their argument in terms of federal constitutional guarantees, made applicable to the states by the 14th amendment. This carries into our present problem such issues as whether the refusal to let defendant call her attorney violated her rights under the 6th amendment, and if so, whether it led to the kind of self-incriminatory consequences that must be suppressed as a result of the denial of access to counsel, or whether the breathalizer test is the kind of search to which counsel's advice is irrelevant and which may be imposed without violating either the 4th, 5th, or 6th amendments. ¹ Before addressing such federal issues, however, a court's responsibility is first to decide the effect of the state's own laws, because if the state provides what defendant claims, it does not deprive her of the due process commanded by the 14th amendment. Conversely, a procedure not forbidden by the United States Constitution is not by that fact "authorized" in the absence of contrary state law, for the Constitution only limits the actions of state officials; authority to take these actions must be found in state law. State v. Sims, 287 Or. 349, 353 n.1, 599 P.2d 461 (1979); State v. Spada, 286 Or. 305, 309, 594 P.2d 815 (1979); State v. Smyth, 286 Or. 293, 593 P.2d 1166 (1979); State v. Scurlock, 286 Or. 277, 593 P.2d 1159 (1979); State v. Heintz, 286 Or. 239, 255, 257-258, 594 P.2d 385 (1979) (concurring opinion); State v. Greene, 285 Or. 337, 349, 591 P.2d 1362 (1979) (concurring opinion); State v. Flores, 280 Or. 273, 279, 570 P.2d 965 (1977); Brown v. Multnomah County Dist. Ct., 280 Or. 95, 570 P.2d 52 (1977); State v. Ivory, 278 Or. 499, 503, 564 P.2d 1039 [288 Or. 455] (1977); State v. Valdez, 277 Or. 621, 561 P.2d 1006 (1977); State v. Florance, 270 Or. 169, 180-187, 527 P.2d 1202 (1974); State v. Brown, 262 Or. 442, 453, 497 P.2d 1191 (1972). If the state law is determined to be adverse to defendant, of course the federal issues remain to be decided. But the court will not needlessly interpret state law in a manner that would reach an unconstitutional result. State v. Smyth, supra; State v. Harmon, 225 Or. 571, 577, 358 P.2d 1048 (1961), and cases there cited.

When the issues are examined in this order, the result need not be derived from a constitutional "right to counsel." The question, rather, is whether there were valid grounds for denying Mrs. Scharf's request to make the telephone call during the period preceding the administration of the breathalizer test, and if not, what effect an improper denial has on the prosecution's right to use the test results against her.

The state does not deny, in principle, that Mrs. Scharf was entitled to call an attorney at some point following her arrest. The officer correctly told her so at the time of the arrest. As we have recently stated, nothing in Oregon law authorizes officers to hold an arrested person incommunicado beyond the immediate necessities of the arrest and the circumstances of custody itself. ² The state does not claim that any such practical obstacles made it necessary to prevent or delay Mrs. Scharf's telephone call. Nor is there any contention that a telephone call would unduly delay the test. ³ If a person who insists on obtaining advice before making a choice unsuccessfully attempts to do so and the officer has reason for concern that the delay will make an eventual test unusable, the officer might at that time tell the arrested person that he will regard any further delay in making the choice as a refusal and report it as such to the Division of Motor Vehicles under ORS 487.805(2). Cf. Capretta v. Motor Vehicles Div., 29 Or.App. 241, 562 P.2d 1236 (1977) (license revocation). Rather, Mrs. Scharf was prevented from using the telephone specifically in order to compel her to choose whether to submit to the breathalizer test before making the call and to deprive her of legal advice on that choice. But it is not and cannot seriously be contended that depriving an arrested person of legal advice is in itself an authorized reason for preventing her to make a telephone call.

Instead the state relies on the contention that administration of the breath test is a civil rather than a criminal procedure. That might be true if it were limited to determining whether the driver's license should be suspended or revoked. See Burbage v. Dept. of Motor Vehicles, 252 Or. 486, 450 P.2d 775 (1969); Stratikos v. Dept. of Motor Vehicles, 4 Or.App. 313, 477 P.2d 237, 478 P.2d 654 (1971). ⁴ But we have held that a DUII charge is a criminal prosecution. Brown v. Multnomah County Dist. Ct., supra.

We also hold that when the state's officers have deliberately compelled a person to decide on submitting to the breathalizer test without the requested opportunity to seek advice, the state did not obtain the test results with the person's consent as provided by law.

The Legislative Assembly has left the decision whether or not to submit to a chemical test of his or her breath to the person arrested for driving under the influence of intoxicants. It has done so in the roundabout way of first creating the statutory fiction of an "implied consent" and then providing that the arrested person may refuse to take the test at the cost of facing a probable 120-day suspension of his or her driver's license. ORS 487.805. ⁵ The statute provides that the officer is to "request" submission to the test, not order it. If the driver objects, the request is to be followed by an explanation of the consequences of a refusal for the driver's license, ORS 487.805(2), and of the driver's right to obtain a test of his own, ORS 487.810. In other words, the legislature prescribed that the breath test would be administered only upon the DUII suspect's voluntary and informed choice, subject to the sanction of a license suspension. By declining to breathe into the test device a driver could choose not to risk facing the results in a criminal trial and instead refrain from driving a car for four months.

The arrested driver's choice is no less a choice because one would prefer to avoid either alternative. And the legislature has made clear that it is to be an informed choice. For not only must the officer's report recite that he furnished the required information about the rights and consequences involved; ORS 482.550 provides that these procedural steps and recitals could be controverted in a hearing on the resulting license suspension. ⁶ More than that: Compliance with the procedure of warning and informed choice is made subject to a highly unusual "appeal" in a De novo jury trial in circuit court "as provided in criminal actions" before the license suspension takes effect. ORS 482.560.

In view of these defenses available in the license suspension procedures on the one hand, and on the other hand the procedural protections and the potential sentences in a DUII trial, See Brown v. Multnomah County Dist. Ct., supra, (including possible challenges to the test procedures and results See ORS 487.815), ⁷ the choice demanded of the motorist in custody is by no means the simple alternative: "Breathe into the device and chance the results in a DUII trial or take a 120-day license suspension." The legal consequences of the choice are neither obvious nor easy...