State v. Swan, 130242160

• Decision Date: 27 January 2016
• Docket Number: A154526.,130242160
• Citation: 276 Or.App. 192,366 P.3d 802
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Andrew A. SWAN, Defendant–Appellant.
• Court: Oregon Court of Appeals

276 Or.App. 192

366 P.3d 802

STATE of Oregon, Plaintiff–Respondent,

v.Andrew A. SWAN, Defendant–Appellant.

130242160

A154526.

Court of Appeals of Oregon.

Argued and Submitted Feb. 24, 2015.

Decided Jan. 27, 2016.

Kali Montague, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Doug M. Petrina, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Joanna L. Jenkins, Assistant Attorney General.

Before ARMSTRONG, Presiding Judge, and EGAN, Judge, and NAKAMOTO, Judge pro tempore.

NAKAMOTO, J. pro tempore.

This criminal appeal concerns the partial denial of defendant's motion to suppress evidence. Defendant was convicted of driving under the influence of intoxicants (DUII), ORS 813.010 (Count 1), and reckless driving, ORS 811.140 (Count 2). Before trial, the court determined that a law enforcement officer impermissibly interrogated defendant without an attorney present, a violation of defendant's right against self-incrimination under Article I, section 12, of the Oregon Constitution.¹ As a result, the trial court suppressed some of defendant's statements.

However, the trial court declined to exclude evidence of defendant's blood alcohol content (BAC), which the officer obtained when defendant agreed to take a breath test. Defendant assigns error to that ruling, arguing that the BAC evidence should have been suppressed because (1) the officer asked defendant to take a breath test after he had invoked his right to counsel and (2) defendant agreed to take the breath test only after the officer, without intervening circumstances, had violated his right to be free from custodial interrogation under Article I, section 12. We affirm, concluding that the trial court did not err in denying defendant's motion to suppress the BAC results because (1) the officer did not violate defendant's right against self-incrimination under Article I, section 12, by asking defendant to submit to a breath test and (2) the BAC results were not derived from a prior constitutional violation.

I. FACTS

We review the denial of a motion to suppress for errors of law and are bound by the trial court's factual findings that are supported by sufficient evidence in the record. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993). In this case, the trial court made certain factual findings concerning the motion to suppress. In describing the pertinent events, therefore, we draw from those express findings, together with other undisputed facts contained in the record and reasonable inferences consistent with the trial court's ruling.

See Ball v. Gladden, 250 Or. 485, 487, 443 P.2d 621 (1968) (in the absence of express findings, we generally presume that the trial court decided disputed factual issues consistently with its ultimate conclusion).

Officer Enz, who was working the graveyard shift, received a call from precinct officers requesting assistance with a traffic crash investigation. When he arrived on the scene, Enz quickly spotted defendant's car. When Enz approached the vehicle, he noticed that defendant was still seated in the driver's seat. Before Enz knocked on the window to draw defendant's attention, Enz observed that defendant had his eyes closed and that defendant's head kept bobbing forward. In response to Enz's knocks, defendant attempted to roll down the window. After several failed attempts to locate the window lever, defendant opened the door. Enz explained to defendant why he had responded to the scene and asked defendant what had happened to his car, pointing at the damage to the right front quarter panel. Defendant responded that he had "clipped a car."

At that point, Enz believed that defendant was under the influence of intoxicants based on defendant's slurred speech and watery and bloodshot eyes, coupled with an odor of alcohol emanating from defendant. Enz explained to defendant that, based on his observations and the fact that defendant had admitted to driving, Enz believed that he had probable cause to investigate defendant for DUII. Enz described the standardized field sobriety tests (FSTs) and asked defendant if he would consent to perform the tests. In response, defendant requested an attorney. Enz told defendant that, if he had a cell phone, he could call an attorney from his car. Enz let defendant make his call and went to take measurements of the crash scene. Defendant had privacy for approximately 11 minutes.

When Enz returned, he asked defendant again if he "would like to perform the voluntary field sobriety tests." Enz again described the FSTs while defendant repeated into the phone everything that Enz said. Defendant then consented to perform the FSTs. Enz did not confirm with whom defendant was talking on the phone.

Enz and defendant then moved to a nearby sidewalk for the FSTs. On the way, Enz observed defendant "sway" and "stagger." Enz administered three FSTs, which defendant failed. Enz told defendant that he was under arrest for DUII and placed him in handcuffs.

Immediately thereafter, Enz read defendant his Miranda rights. When asked if he understood them, defendant responded, "NO! I want to talk to my lawyer." Enz told defendant that he would have another opportunity to consult with someone privately when they got back to the precinct. Defendant then stated, "Yes, I understand my rights."

Enz transported defendant to the precinct, where he was placed in a cell. Enz provided defendant with defendant's cell phone, a landline, a phone book, and a copy of the implied consent form that advised defendant of the rights and consequences related to taking or refusing a breath test. Enz told defendant that he could make as many calls as he liked to whomever he liked and that he would be closing the cell door to provide him with privacy while he was on the phone. Before leaving, Enz also explained the implied consent procedure.

Approximately 20 minutes later, Enz returned. He discovered defendant was still on the phone, so Enz advised him that he would give him another minute or so to complete his call. When Enz checked on defendant again, several minutes later, defendant was finishing his call.

Enz then escorted defendant into the Intoxilyzer room and began the 15–minute observation period preliminary to a breath test. During the observation period, Enz asked defendant a series of questions to complete a DUII Interview Report. Before proceeding, Enz explained the DUII interview process and told defendant that, if he did not wish to answer any of the questions, he did not have to. The questions included, "What kind of alcohol did you drink: beer, wine, or mixed drinks?"; "What size were the drinks?"; and "What time did you stop drinking?" During the course of the interview, defendant specifically declined to answer at least one of the questions, concerning who was driving.

After the interview, Enz read defendant the implied consent rights and consequences and asked whether defendant would take the Intoxilyzer breath test. In response, defendant stared at him and started reading the implied consent form. Enz told defendant that he would have a moment to think about it and that Enz would ask again once the instrument was ready for a breath sample. At that point, defendant asked to speak with his attorney before answering the question. Enz told defendant that he already had had ample time to consult with someone for legal advice both at the scene and at the precinct—more than half an hour. When Enz asked again if defendant would take the breath test, defendant answered, "Yes." The breath test showed that defendant's BAC was .18.

Defendant was charged with driving under the influence of intoxicants, ORS 813.010, and reckless driving, ORS 811.140.² Before trial, defendant filed motions to suppress "any and all evidence obtained" but argued in his memoranda of law that the court should suppress his "statements." As relevant to this appeal, defendant asserted that, because he had invoked his constitutional rights to counsel under Article I, section 12, the officer thereafter was obligated not to interrogate him except through counsel, and that his right to counsel under Article I, section 11, of the Oregon Constitution was violated. Article I, section 11, provides, in part, "In all criminal prosecutions, the accused shall have the right * * * to be heard by himself and counsel[.]" Under that section, "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." State v. Spencer, 305 Or. 59, 74–75, 750 P.2d 147 (1988).

At the suppression hearing, the state stipulated that defendant unequivocally invoked his right to counsel and that defendant never withdrew that invocation. The state also stipulated that the questions in the DUII interview, and their answers, should be suppressed.

The parties then addressed the admissibility of defendant's BAC. Defendant framed the issue for the court this way:

"Did he invoke? Yes.

"What's the effect of the invocation? That * * * all questioning should cease.

"What's the effect of the questioning[ ] and does that lead to further evidence? Yes.

"And, so I think that all flows from the questioning. I think the biggest issue is the last issue of whether or not that would stop the field sobriety tests for instance or the breathalyzer test."

For its part, the state argued that the breath test "would be admissible evidence following an invocation, so long as the person is provided a reasonable opportunity to obtain legal advice" in satisfaction of the requirement under Article I, section 11. The state argued that Enz provided that opportunity to defendant, a point that defendant contested.

The trial court partially agreed with defendant, concluding that the officer had violated defendant's Article I, section 12, rights by questioning him...