Argued and Submitted September 30, 2013.
Tillamook County Circuit Court. 107134. Jonathan R. Hill, Judge.
Kristin A. Carveth, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Jennifer S. Lloyd, Attorney in Charge, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Douglas F. Zier, Senior Assistant Attorney General.
Before Duncan, Presiding Judge, and Wollheim, Judge, and Schuman, Senior Judge.
[263 Or.App. 48] DUNCAN, P. J.
Defendant appeals a judgment of conviction for driving under the influence of intoxicants (DUII), ORS 813.010. He claims that the trial court erred in denying his motion to suppress evidence of his refusal to take an Intoxilyzer breath test because the state failed to prove that he knowingly waived his right to consult privately with counsel before deciding whether to take the test. Because, as explained below, defendant did not preserve that claim, we affirm.
On December 7, 2010, Deputy Hanratty of the Tillamook County Sheriff's Office arrested defendant for DUII. Hanratty transported defendant to the county jail. The parties dispute what happened at the jail. According
to the state, after arriving at the jail, Hanratty administered several field sobriety tests to defendant and then took him to the Intoxilyzer room. Hanratty read defendant an " implied consent" form and asked defendant if he would agree to take a breath test. In response, defendant said that he wanted to speak with an attorney. At that point, Hanratty left the room and asked Deputy Roberts, who worked in the jail, to bring defendant a phone. Roberts brought a phone into the Intoxilyzer room, while Hanratty observed Roberts and defendant through a window. Roberts set up the phone and stayed in the room with defendant. Hanratty indicated that, " after a while," he saw Roberts carrying the phone away from defendant. Hanratty asked Roberts what had happened, and Roberts said that defendant no longer wanted to talk with an attorney. Hanratty then confirmed with defendant directly that he no longer wanted to talk with an attorney. Hanratty then asked defendant whether he would take the breath test, and defendant refused.
Defendant had a different view of what transpired at the jail. Before trial, he moved to suppress evidence of his refusal on the grounds that he was denied the right to speak with an attorney before taking the breath test. See State v. Spencer, 305 Ore. 59, 74-75, 750 P.2d 147 (1988) (holding that, under Article I, section 11, of the Oregon Constitution, an arrested driver, upon request, has the right to a reasonable opportunity to consult with an attorney before deciding [263 Or.App. 49] whether to submit to a breath test). Defendant asserted that he had asked to speak with an attorney and was denied a reasonable opportunity to do so; he contended that he never withdrew his request to consult with counsel. He claimed that there had been a breakdown in communication, and that he had not understood what was being asked of him when he allegedly said that he no longer wanted an attorney because he is unable to understand or to speak English and because the Sheriff's Office failed to provide a Spanish interpreter in the Intoxilyzer room. Defendant relied upon ORS 133.515(2) and Staglin v. DMV, 227 Or.App. 240, 205 P.3d 90, rev den, 346 Ore. 364, 213 P.3d 578 (2009), to argue that the officers' failure to provide an interpreter caused a miscommunication that denied him his " right to communicate" with an attorney.
The trial court denied defendant's motion to suppress the breath test refusal and issued written findings of fact and conclusions of law. In its ruling, the court found " that Deputy Hanratty was credible and the Defendant was not" and the court also found that " Defendant does understand English to some degree." The court concluded:
" Regarding the question did the Deputies accommodate the Defendant's request to communicate with Counsel, the Defendant told Deputy Roberts that the Defendant did not want to speak with a lawyer and handed Deputy Roberts the phone back. The Defendant verbally and physically communicated that he did not want to speak with a lawyer at that time. Deputy Hanratty then questioned the Defendant about changing his mind in that room on the night of the incident. The Defendant said he did not want to speak to an attorney. The Defendant's statement that the Deputies misunderstood him is not well taken. Deputy Hanratty spoke to the Defendant at the jail in English. The Defendant went through the Field Sobriety Tests with communication done in English. The Defendant was asked the questions on State's Exhibit #1 [Alcohol Influence [263 Or.App. 50] Interview Report] in English and without an interpreter those questions were answered. After the Breath test was refused the Deputy started ...