State v. Veatch, D052111T.

• Court: Court of Appeals of Oregon
• Writing for the Court: Rosenblum
• Citation: 196 P.3d 45,223 Or. App. 444
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Brett Alan VEATCH, Defendant-Appellant.
• Decision Date: 29 October 2008
• Docket Number: A132040.,D052111T.

196 P.3d 45 223 Or. App. 444 STATE of Oregon, Plaintiff-Respondent,
v.
Brett Alan VEATCH, Defendant-Appellant. D052111T. A132040. Court of Appeals of Oregon. Argued and Submitted March 10, 2008. Decided October 29, 2008.

[196 P.3d 47]

Richard E. Oberdorfer, Portland, argued the cause for appellant. With him on the brief was Oberdorfer Law Firm LLC.

Douglas F. Zier, 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 HASELTON, Presiding Judge, and EDMONDS, Judge, and ROSENBLUM, Judge.

ROSENBLUM, J.

223 Or. App. 446

This appeal calls on us to determine whether the police denied defendant's right to consult privately with counsel before deciding whether to take an Intoxilyzer test and to determine the adequacy of a curative instruction given to the jury by the trial court in response to a defense motion for a mistrial. We conclude that the police did not deprive defendant of a reasonable opportunity to obtain legal advice and, thus, that the trial court correctly denied his motion to suppress evidence related to the Intoxilyzer test. However, we also conclude that the curative instruction that the court gave was inadequate and, thus, that the court erred in denying defendant's motion for a mistrial. Accordingly, we reverse.

Defendant was convicted of driving under the influence of intoxicants (DUII), ORS 813.010(1). He makes three assignments of error on appeal. We reject the first without discussion. In his second assignment, defendant challenges the denial of a motion for a mistrial made after the arresting officer testified that defendant had asked to speak with his attorney before deciding whether he would submit to an Intoxilyzer test. The trial court gave a curative instruction but denied the motion. In defendant's third assignment of error, he contends that the trial court erred in denying his motion to suppress evidence related to the Intoxilyzer test. In support of that assignment, he asserts that the arresting officer did not leave the room while he left voice mail messages with his attorney and called his mother to ask if she could refer him to another attorney.

We take the facts pertinent to the motion to suppress from the record of the suppression hearing and the facts pertinent to the mistrial motion from the record of defendant's trial. Defendant was arrested on suspicion of DUII and placed in the back of a police car. While the arresting officer was talking to another officer who had arrived to transport defendant to the Washington County Jail, defendant took his cell phone from his pocket and attempted to make a call. Officer Berry took the phone from him and then drove him to the jail. At the jail, Berry asked defendant if he would agree

223 Or. App. 447

to take an Intoxilyzer test to determine his blood alcohol content. Defendant stated that he wanted to contact his family's attorney first. Pursuant to jail policy, defendant's hands remained handcuffed behind his back, so Berry dialed the telephone number and then placed the receiver on defendant's shoulder so he could hold it between his shoulder and head. It was approximately 4:00 a.m., and the attorney did not answer his telephone. Defendant left two voice mail messages asking him to return his call at the jail. Defendant then called his mother, asking her to refer him to another attorney. Berry testified at the suppression hearing, "It was my understanding that his mother was unaware of any other attorneys that the family used." Berry offered to let defendant look for another attorney in the telephone book, but, Berry testified, defendant "didn't desire to do that."

After defendant left the messages for his attorney, Berry waited half an hour for the attorney to call back. When he did not return the call, Berry then told defendant that he needed a decision as to whether defendant would agree to proceed with the Intoxilyzer test. Defendant initially remained silent, which Berry took as a refusal to take the test. He printed a "refusal card" from the Intoxilyzer machine. Moments later, defendant stood up and walked over to the machine, so Berry decided to let him submit a sample. Defendant blew into the mouthpiece, but he did not blow hard enough for the machine to get a sample. Berry recorded his attempt as another refusal.

196 P.3d 48

Before trial, defendant made a motion to suppress the evidence related to the Intoxilyzer test, arguing that he was denied the right to private consultation with counsel before deciding whether to consent to the test. The court denied the motion.

At defendant's trial, before the jury was selected, defense counsel, the prosecutor, and the trial court discussed pretrial rulings that a different judge had made earlier. Defense counsel stated that the judge had ruled that there should be "no mention of [defendant's] telephone calls whatsoever because that's invocation of a right * * *. And the second prong was no mention of witness Gerry Chase, who's a lawyer, because the right to call a lawyer is also part of the

223 Or. App. 448

counsel right * * *." The prosecutor stated that she had a different recollection of the pretrial ruling, acknowledging that "we can't say he was a lawyer," but contending that the judge had ruled that evidence about calls could come in. The court ruled that there could be no mention of telephone calls unless the defense opened the door to such evidence and that, even then, "[w]e don't need to know who it was to * * *."

In her opening statement to the jury, the prosecutor stated that defendant had attempted to use his cell phone in the back of the police car. Defense counsel interrupted, stating, "Your Honor, I have a matter for the court." The court responded, "No, I know what it is and it's fine." After opening statements had concluded, the jury was sent out of the courtroom. Defense counsel stated that, "for the record," he was moving for a mistrial. The court interjected that it understood that the motion was based on the prosecutor's mention of the cell phone, adding, "[I]t's close, but I knew that's [what] you were going to do and I would overrule it."

In its case-in-chief, the state called Berry to testify. After he testified about defendant's arrest and transport to the jail, his direct examination continued as follows:

"Q. Okay. Did you — first of all, are you trained to operate the Intoxilyzer?

"A. Yes.

"Q. Okay. While at the station, did you read the defendant his rights and consequences?

"A. Yes.

"Q. Did you ask him if he would take the test?

"A. Yes, I did.

"Q. How did he respond?

"A. He wanted to call his lawyer before making that decision.

"[Defense counsel]: Objection. I have a matter for the court.

"THE COURT: Sustained. And if I hear that word again—

223 Or. App. 449

"[Prosecutor]: Yeah.

"THE COURT: — you're going to start all over again.

"[Prosecutor]: Right. And, officer, we talked about this.

"THE COURT: To be real honest with you, a person has a right to call their lawyer and you're not supposed to make any inferences from that, since they have a right to do it.

"And so the State's not even supposed to bring it up. They brought it up. The seven of us are going to totally ignore it, though they couldn't. Go ahead.

"[Prosecutor]: Okay. * * * Officer, just so you understand. We talked about this outside. Just answer the questions I ask. Okay?

"[Berry]: All right.

"[Prosecutor]: No talk of—

"[Berry]: Okay.

"[Prosecutor]: — phone calls or lawyers. So, you asked — at some point you asked the defendant would he take a breath test?

"A. Yes."

Berry went on to testify that defendant did not answer and that he initially printed a "refusal card" but then allowed defendant to give a breath sample. Berry stated that he recorded the attempt as a refusal because, in his view, defendant had not given "an honest effort."

After Berry finished testifying, the state rested its case, and the jury was excused for lunch. Defendant then moved for a mistrial "based on the comment about the lawyer."

196 P.3d 49

The court responded, "Okay. That's denied still."

Several witnesses testified in defendant's behalf, including defendant himself. Defendant testified that he had consumed one and a half beers with lunch in the early afternoon but had no more alcohol between then and the time he was arrested more than 12 hours later. The jury ultimately found defendant guilty of DUII.

223 Or. App. 450

On appeal, defendant challenges the denial of his suppression and mistrial motions. We begin with the motion to suppress. Defendant renews his challenge to the introduction of the evidence related to the Intoxilyzer test. He contends that Berry should have given him privacy both when he left the voice mail messages for his attorney and when he called his mother to ask her to refer him to another attorney.¹ He relies on a passage in State v. Durbin, 335 Or. 183, 194, 63 P.3d 576 (2003), in which the Supreme Court stated that, to avoid violating the right to counsel, the police "might find it preferable to inform the driver of their intent to administer the breath test and then, if the driver requests counsel, to allow the driver a reasonable time in which to seek legal advice, in private, before beginning the required observation period [that precedes the test]." Defendant relies in particular on the phrase "to seek legal advice," arguing that the court held that confidentiality is required not only when an arrested driver is speaking with an attorney, but also while the driver is seeking counsel—that is, while the driver is attempting to locate and establish contact with an attorney.

Defendant reads too much into that phrase in Durbin. Read in isolation, the phrase "to seek legal advice" could be understood to include attempting to locate or contact an attorney. However, the context in which the court used the phrase in Durbin...