State v. Spencer

• Decision Date: 17 February 1988
• Citation: 305 Or. 59,750 P.2d 147
• Parties: STATE of Oregon, Respondent on Review, v. Ronald Ervan SPENCER, Petitioner on Review. TC 85-60405; CA A38156; SC S33521.
• Court: Oregon Supreme Court

Page 147

750 P.2d 147

305 Or. 59

STATE of Oregon, Respondent on Review, v. Ronald Ervan SPENCER, Petitioner on Review.

TC 85-60405; CA A38156; SC S33521.

Supreme Court of Oregon,

In Banc.

Argued and Submitted March 5, 1987.

Decided Feb. 17, 1988.

Edmund J. Spinney, Springfield, argued the cause and filed petition on behalf of petitioner on review.

Jonathan H. Fussner, Asst. Atty. Gen., Salem, argued the cause on behalf of respondent on review.

GILLETTE, Justice.

This driving under the influence of intoxicants (DUII) case once again presents this court with the question of what consequences follow if evidence of an intoxilyzer result is obtained from an arrested DUII suspect after police have refused to allow that suspect to contact an attorney. The Court of Appeals, with one judge dissenting, held that evidence of the intoxilyzer result was admissible in spite of the fact that the suspect had been denied access to counsel. State v. Spencer, 82 Or.App. 358, 728 P.2d 566 (1986). In so holding, the Court of Appeals majority relied on this court's plurality opinion in State v. Newton, 291 Or. 788, 813, 636 P.2d 393 (1981), which held that, although such a denial of access to counsel was an unauthorized restriction of the defendant's personal liberty in violation of the Fourteenth Amendment, the clarification of the law in that opinion should be "sufficient to cause a change in police practice and deter future similar conduct [by the police] without the necessity of creating a new exclusionary rule." We now conclude that the Newton approach may have been too optimistic and, in any event, was unworkable. We abandon that portion of Newton and, in so doing, reverse the Court of Appeals.

On May 4, 1985, Deputy McMullen of the Lane County Sheriff's Office arrested petitioner (hereafter defendant) for DUII. Defendant was transported to the Lane County Jail, where he was asked for a sample of his breath for testing. In connection with the request, McMullen explained to defendant the potential consequences of refusal to submit to the breath test. Defendant asked whether he could call his attorney before deciding whether to submit to the test. Defendant was told that he could not do so. He then submitted to the test. Defendant testified at the hearing on the motion to suppress that he had the name of an attorney and knew how to contact that attorney, had he been permitted to do so. The trial court ruled that the denial of an opportunity to consult counsel was not a sufficient ground to justify suppressing the intoxilyzer result.

The case reached the Court of Appeals on a state's appeal concerning another issue not important to the resolution of the present appeal. Defendant cross-appealed with respect to the denial of counsel issue. The Court of Appeals ruled in favor of the state on all issues and remanded the case for trial. Defendant's present petition for review followed.

This case arises out of the implied consent law, which formerly was codified at ORS 487.805, et seq., and presently is codified at ORS 813.100, et seq. CRS 813.100 provides, in part:

"(1) Any person who operates a motor vehicle upon premises open to the public or the highways of this state shall be deemed to have given consent, subject to the implied consent law, to a chemical test of the person's breath for the purpose of determining the alcoholic content of the person's blood if the person is arrested for driving a motor vehicle while under the influence of intoxicants in violation of ORS 813.010 or of a municipal ordinance. A test shall be administered upon the request of a police officer having reasonable grounds to believe the person arrested to have been driving while under the influence of intoxicants in violation of ORS 813.010 or of a municipal ordinance. Before the test is administered the person requested to take the test shall be informed of consequences and rights as described under ORS 813.130.

"(2) No chemical test of the person's breath shall be given, under subsection (1) of this section, to a person under arrest for driving a motor vehicle while under the influence of intoxicants in violation of ORS 813.010 or of a municipal ordinance, if the person refuses the request of a police officer to submit to the chemical test after the person has been informed of consequences and rights as described under ORS 813.130." ¹ The issues presented are whether, under the statute quoted above or under the state or federal constitutions, an arrested driver has the right to call an attorney before deciding whether to submit to a breath test and, if such a right exists, the consequences that flow from a violation of that right. We have attempted to resolve those precise questions in two earlier cases: State v. Scharf, 288 Or. 451, 605 P.2d 690 (1980), and State v. Newton, supra. We turn first to a somewhat detailed examination of those two decisions.

I

In State v. Scharf, supra, as in this case, the defendant in a prosecution for DUII objected to the introduction of the results of a breathalyzer test administered after her request to consult an attorney was denied. This court held, by a 4-3 vote, that former ORS 487.540 required that an accused's decision to submit to a breath test be a "voluntary and informed choice." State v. Scharf, supra, 288 Or. at 458, 605 P.2d 690. In so concluding, the majority noted that, under the statute, a police officer was to "request" that the accused submit to the test. If the accused objected, the officer was to explain the consequences of refusal and that the accused had the right to obtain a test on his or her own. The importance of these procedural requirements was underscored by the availability of a hearing on the license suspension and a de novo jury trial in circuit court, at which the accused could controvert the officer's report stating that the officer had provided the necessary advice of rights and consequences.

From the above portions of the implied consent statutes, the Scharf majority discerned a legislative intent that an accused be afforded the opportunity to make a "voluntary and informed choice" whether to submit to the breath test and risk a DUII conviction, or to refuse to submit at the price of a 120-day suspension. The majority noted that:

"The legal consequences of the choice are neither obvious nor easy to evaluate in the individual case. Indeed these legal consequences change with the passage of new legislation * * *. There may be collateral effects for the individual's overall driving record, insurance coverage, even employment. Commonly an arrested person will know little of these implications of the decision to take or to refuse the test. But she may recognize, as [the defendant] did, that it is a decisive moment for the subsequent legal consequences and want to call counsel for advice before making the decision." Id. at 459, 605 P.2d 690 (footnote omitted).

The majority went on to conclude that the legislature could not have intended that an arrested driver would have to rely solely on the legal advice of the police in making the decision to take or to refuse the test. Exercise of the "voluntary and informed choice" contemplated by the legislature, in the majority's view, required that the arrested driver be given the opportunity to consult an attorney. Id. at 460, 605 P.2d 690. The majority then held that denial of access to counsel would result in suppression of the breath test results in a prosecution for DUII:

"Because the legislature decided to employ breath tests in DUII prosecutions only with the suspect's informed assent, it follows that the results of such a breath test are to be used against a DUII defendant only when they have been obtained by legally proper procedures." Id. at 460-61, 605 P.2d 690, citing State v. Fogle, 254 Or. 268, 459 P.2d 873 (1969).

Chief Justice Denecke dissented, joined by Justices Tongue and Howell. The dissent traced the history of the implied consent law, noting that, when breath tests first were authorized, they were strictly voluntary. In 1965, the Oregon legislature enacted a statute providing that a driver impliedly consented to a breath test by using the state's highways. At that time, a driver's refusal to submit resulted in license suspension, but the fact of refusal could not be admitted in the driver's criminal trial for DUII. In 1979, however, the legislature amended the statute to provide that a driver's refusal to take a breath test was admissible in a criminal prosecution. The dissent concluded:

"The legislature has repeatedly evidenced serious concern about the problem of driving while under the influence of liquor. It has strengthened the enforcement of laws relating to driving while under the influence by amendments which changing constitutional law seemed to permit. In light of this history of repeated changes in the law in favor of stronger enforcement, I cannot read an implied legislative intent to require the opportunity for legal advice which certainly would not strengthen enforcement." State v. Scharf, supra, 288 Or. at 463, 605 P.2d 690. (Denecke, C.J., dissenting).

The dissent went on to note that the statute in question expressly set out the information to be given a person who refuses the test, and concluded that:

"In view of this express provision for the officer informing the arrested person of his or her choices and the consequences of the choices, I do not believe it reasonable to infer that the legislature also intended to legislate that the arrested person is entitled to additional advice from a lawyer." Id.

Finally, the dissent argued that the majority was wrong in holding that the statutory violation, assuming there was one, required the exclusion of the breath test results in the defendant's DUII trial. The statute under consideration required that the accused be informed of the consequences of refusal before the refusal could serve as a basis for administrative license suspension. Fo...