State v. Swan

• Decision Date: 21 June 2018
• Docket Number: CC 130242160,SC S064016
• Citation: 363 Or. 121,420 P.3d 9
• Parties: STATE of Oregon, Respondent on Review, v. Andrew A. SWAN, Petitioner on Review.
• Court: Oregon Supreme Court

363 Or. 121

420 P.3d 9

STATE of Oregon, Respondent on Review,

v.Andrew A. SWAN, Petitioner on Review.

CC 130242160

SC S064016

Supreme Court of Oregon.

Argued and submitted November 10, 2016.

June 21, 2018

Kali Montague, Deputy Public Defender, Office of Public Defense Services, Salem, filed the briefs and argued the cause for petitioner on review. Also on the briefs was Ernest G. Lannet, Chief Defender.

Benjamin Gutman, Solicitor General, Salem, argued the cause for respondent on review. Joanna L. Jenkins, Assistant Attorney General, filed the brief. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Balmer, Chief Justice, and Kistler, Walters, Flynn, Duncan, and Nelson, Justices, and Lagesen, Judge of the Court of Appeals, Justice pro tempore.^**

KISTLER, J.

Defendant was arrested for driving under the influence of intoxicants (DUII) and advised of his Miranda rights. In response, he invoked his right to counsel. Afterwards, the arresting officer asked defendant 28 DUII interview questions and then asked if he would consent to a breath test. Defendant moved to suppress his answers to the 28 questions and all derivative evidence, which he argued included his decision to take the breath test and the test results. The state, for its part, conceded that asking defendant the 28 DUII interview questions after he had invoked his right to counsel violated Article I, section 12, of the Oregon Constitution. The state took the position, however, that suppressing the officer’s questions and defendant’s answers was sufficient to vindicate that right. The Court of Appeals agreed and also observed that asking defendant for consent to take a breath test did not constitute prohibited "interrogation" under Article I, section 12. State v. Swan , 276 Or. App. 192, 366 P.3d 802 (2016). We allowed defendant’s petition for review to consider those issues and now reverse the Court of Appeals decision and the trial court’s judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

This case arises out of defendant’s claims that the arresting officer violated his right to counsel under Article I, section 11, and Article I, section 12, of the Oregon Constitution. Before setting out the facts, we first describe briefly those two state constitutional sources of a right to counsel.

Article I, section 11, provides that, "[i]n all criminal prosecutions, the accused shall have the right *** to be heard by *** counsel."

Ordinarily, the Article I, section 11, right to counsel does not attach until indictment. State v. Sparklin , 296 Or. 85, 92, 672 P.2d 1182 (1983) ; see State v. Davis , 350 Or. 440, 256 P.3d 1075 (2011) (analyzing the history of Article I, section 11 ). However, this court has held that an Article I, section 11, right to counsel can attach before indictment when a driver is arrested for DUII. State v. Spencer , 305 Or. 59, 74, 750 P.2d 147 (1988) ; see State v. Durbin , 335 Or. 183, 63 P.3d 576 (2003) (same).

A DUII suspect’s pretrial Article I, section 11, right to counsel is "not as broad as the [ Article I, section 11,] right to counsel that an accused enjoys at trial." Durbin , 335 Or. at 189, 63 P.3d 576. The right arises only "upon request" and consists of a "reasonable opportunity to obtain legal advice before deciding whether to submit to a breath test." Spencer , 305 Or. at 74, 750 P.2d 147 ; see Durbin , 335 Or. at 193–94, 63 P.3d 576 (holding that the right to consult with counsel regarding whether to take a breath test ordinarily includes the right to do so privately).

A suspect also has an Article I, section 12, right to counsel that derives from the state constitutional Miranda right. State v. Haynes , 288 Or. 59, 71, 602 P.2d 272 (1979). That right attaches when a suspect who is in custody or compelling circumstances invokes the right. See State v. Roble–Baker , 340 Or. 631, 637–38, 136 P.3d 22 (2006) (explaining when Article I, section 12, rights attach). Once a suspect invokes his or her Article I, section 12, right to counsel, the suspect " ‘is not subject to further interrogation by the authorities until counsel has been made available to him,’ " unless the suspect initiates a dialogue that leads to further questioning. State v. Kell , 303 Or. 89, 96, 734 P.2d 334 (1987) (quoting Edwards v. Arizona , 451 U.S. 477, 484, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) ).

Not all direct questions constitute "interrogation" for the purposes of Article I, section 12. State v. Boyd , 360 Or. 302, 317–18, 380 P.3d 941 (2016). Rather, "interrogation" refers to statements or questions, other than questions normally attendant to arrest and custody, that are reasonably "likely to elicit an incriminating response." Id. at 312, 316–18, 380 P.3d 941 ; State v. Scott , 343 Or. 195, 202–03, 166 P.3d 528 (2007). For several years, the Court of Appeals has held that officers may ask a person arrested for DUII whether he or she will take a breath or blood test without violating Miranda . It has reasoned that asking a DUII suspect to take a breath test is a question that is normally attendant to arrest and custody and thus does not constitute "interrogation" for the purposes of Article I, section 12. State v. Higley , 236 Or.App. 570, 573, 237 P.3d 875 (2010) ; State v. Gardner , 236 Or.App. 150, 154–55, 236 P.3d 742, rev. den. , 349 Or. 173, 243 P.3d 468 (2010) ; see State v. Cunningham , 179 Or.App. 498, 502, 40 P.3d 535, rev. den. , 334 Or. 327, 52 P.3d 435 (2002) (discussing related issue). With that background in mind, we turn to the facts in this case.

A. Facts

At approximately 3:00 a.m., Officer Enz received a report of a traffic accident.¹ When he arrived at the scene of the accident, he saw a Dodge truck abandoned in the middle of an intersection and a Subaru Outback nearby. Defendant was sitting in the driver’s seat of the Subaru. The officer noticed that defendant’s "eyes [were] closed and his head kept bobbing forward." When the officer knocked on the window to get defendant’s attention, defendant tried to roll the window down. After "several failed attempts at finding the window lever," defendant opened the door. After speaking with defendant, the officer determined that defendant appeared to be intoxicated "based on his slurred speech, an odor of an alcoholic beverage that was emanating from him, and [the fact that] his eyes were watery and bloodshot."

Based on those observations, the officer told defendant that he believed it was likely that defendant was impaired, and he asked defendant if he would perform field sobriety tests. In response, defendant asked for "an opportunity to speak with his attorney." Officer Enz said that, "if [defendant] had a cell phone *** he could call the attorney from the car." Defendant "started dialing a phone, so [the officer] closed the car door and went to go take measurements of the scene." Approximately 11 minutes later, the officer went back to defendant and asked if "would like to perform the voluntary field sobriety tests." Defendant asked, "What exactly are you asking me to do?" The officer described the tests, and defendant repeated everything that the officer said into his phone. Defendant then said to the officer, "Yes. Yes, I will."

Defendant did not do well on the field sobriety tests, and Officer Enz told him that he was under arrest for DUII and advised him of his Miranda rights. Among other things, Enz told defendant that "[h]e ha[d] the right to have an attorney with him while he’s being questioned." After being advised of those rights, defendant’s "first response was that he wanted to talk to his attorney." The officer explained that defendant would have "another opportunity to consult with somebody privately when [they] got back to the precinct." Defendant responded, " ‘Yes. *** Yes, I understand my rights.’ " The officer did not ask defendant any questions between the second time defendant invoked his right to counsel and the time they arrived at the precinct.

When they got to the precinct, the officer provided defendant with his cell phone, a landline, a phone book, and a copy of the Implied Consent Combined Report. He told defendant that "he could make as many calls as he’d like to whomever he’d like and that [the officer would] be closing the cell door to provide him privacy while he was on the phone." After explaining the procedure for the breath test, the officer closed the cell door at 3:47 a.m. Twenty minutes later, the officer returned and found defendant still on the phone. The officer told defendant that he would "give him another minute or so to complete his phone call, closed the cell, and again checked on him at 4:10 a.m. and found that he was finishing his phone call."

The officer took defendant to another room, began the 15–minute observation period required before administration of a breath test, "conducted the DUII Interview Report[,] and read him the Implied Consent Combined Report in its entirety verbatim." In conducting the DUII interview report, the officer asked defendant "28 questions in multiparts."² Neither the officer’s questions nor defendant’s answers are included in the record.³ Similarly, a copy of the Implied Consent Combined Report is not included in the record, although Enz testified at the hearing regarding three warnings included in the report.⁴

Having gone through that procedure, Enz asked defendant if "he’d take a breath test." Defendant did not answer but "just stared at [the officer] and started reading the Implied Consent Combined Report." Enz told him that he would "give him a moment to think about it and that [he would] be asking him again when he started [the breathalyzer machine]." At that point, defendant said that he "would like to speak with his attorney before he answered that question," and Enz "explained to [defendant] that he’d already been given ample time to consult with someone for legal advice, both at the scene and at the precinct." "At that point, [Enz asked defendant] if he...