Argued and submitted on September 06, 2013.
Washington County Circuit Court D115387T Suzanne Upton, Judge.
Jamie Contreras, Assistant Attorney General, argued the cause for appellant. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Robert G. Thuemmel argued the cause for respondent. With him on the brief was Thuemmel & Uhle.
Before Schuman, Presiding Judge, and Wollheim, Judge, and Duncan, Judge.
SCHUMAN, P. J.
In this driving under the influence of intoxicants (DUII) case, the state appeals a pretrial order suppressing defendant's refusal to submit to a breath test. The state maintains that, when defendant was asked if he was going to take a breath test and he responded, "Not until an attorney [is] right [here] with [me], " that statement amounted to a refusal, despite the fact that police had earlier told him he would have 15 minutes to telephone his attorney. We agree, and we therefore reverse and remand.
The relevant facts are not in dispute. Officer McDougal saw defendant driving erratically and stopped him at approximately 11:00 p.m. on suspicion of DUII, ORS 813.010. After placing defendant under arrest, McDougal transported him to the Washington County Jail where he read defendant his implied consent rights and began the 15-minute observation period before administering the breath test. Defendant repeatedly interrupted McDougal to tell him that "he needed a lawyer there physically present so he could understand better." McDougal offered to read the implied consent information again and slow down if necessary. He also explained, for the first time, that defendant would be allowed "to have a private telephone conversation with an attorney of his choice for 15 minutes." Defendant continued talking over McDougal, would not remain seated, and appeared to be getting increasingly irate, which prompted jail staff to come into the room to instruct defendant to sit down and cooperate.
Following the observation period, just before 12:00 a.m., McDougal explained a second time that defendant would be allowed to use a telephone directory to contact an attorney. Defendant shouted at McDougal, which again drew the attention of the jail staff, and, when defendant would not comply with their instructions, a jail deputy had to physically shove defendant back into his chair. As the jail staff made preparations for defendant to contact an attorney in the privacy of the Intoxilyzer room, McDougal told defendant for a third time that he would have 15 minutes to contact an attorney, with complete privacy and no disturbances. Defendant responded that he wanted an attorney present, and McDougal explained that having an attorney present was not feasible, would not occur, and was not legally required before administration of the breath test. McDougal told defendant that this was his opportunity to speak to an attorney and closed the door to the Intoxilyzer room to give him privacy.
Five or ten seconds later, defendant opened the door and stepped out of the room, acting very irate. Four or five jail deputies responded to the shouting and attempted to physically restrain defendant. When defendant pushed one of the jail deputies in the chest, jail staff tackled him and restrained him on the floor. At 12:15 a.m., while defendant was still "somewhat restrained by jail deputies, " McDougal asked defendant if he would take a breath test, to which defendant responded, "Not until an attorney [is] right [here] with [me]." McDougal told defendant that he was interpreting that statement as a refusal and entered "Refused" into the Intoxilyzer.
Before trial, defendant moved to suppress evidence of his refusal to take a breath test. Defendant argued that he was denied a reasonable opportunity to consult with an attorney before deciding whether to submit to a breath test, because McDougal and the jail deputies did not allow him to use the entire 15-minute period after he walked out of the Intoxilyzer room. Further, defendant contends that the state did not demonstrate that the restriction on his opportunity to contact counsel was justified by the need to collect evidence or to maintain security. The state remonstrated that defendant was given a reasonable opportunity to contact counsel and declined to take advantage of that opportunity. The trial court granted the motion to suppress and stated that, although the actions of McDougal and the jail staff were "absolutely reasonable, " those actions were also "premature." The trial court found that defendant was "due a further opportunity, " and stated:
"The law required them to say, * * *. You've got this period of time, and whether we let you go back in the room, yourself, or we all come with you until you find a number to call[, ] that 15 minutes is ticking. And it's to force the issue with the person to then either say, okay, I won't do it, because I only want someone who's here, or okay, I'll take advantage of it."* * * * *
"But th[ere] needed to be that next thing, because I think that the law requires more, and that decision[, ] while completely understandable at midnight under those circumstances[, ] was premature, and did not meet the letter of the law."
On that basis, the trial court concluded that McDougal was required to give defendant an ultimatum to either take advantage of his opportunity to contact an attorney or forfeit it. Without that, the court ruled that defendant ...