Submitted February 18, 2014
Lane County Circuit Court 231020410. Mustafa T. Kasubhai, Judge.
Peter Gartlan, Chief Defender, and Lindsey K. Detweiler, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Leigh A. Salmon, Assistant Attorney General, filed the brief for respondent.
Before Sercombe, Presiding Judge, and Hadlock, Judge, and Tookey, Judge.
[263 Or.App. 659] TOOKEY, J.
Defendant, who was arrested twice in a four-hour period for driving under the influence of intoxicants (DUII), ORS 813.010, challenges a judgment of conviction for two counts of DUII. He raises three assignments of error on appeal. We reject without discussion defendant's second and third assignments of error, in which he claims that the trial court violated his right to self-representation. We write to address defendant's first assignment of error, in which he contends that the trial court erred when it denied his motions to suppress statements that he made to a drug recognition expert (DRE) and the evidence derived from those statements. Specifically, defendant argues that law enforcement officers violated his right to counsel under Article I, section 12, of the Oregon Constitution  and the Fifth Amendment to the United States Constitution  by interrogating him without the assistance of counsel; according to defendant, he invoked those rights by asking to speak to an attorney before the administration of a breath test. The state responds that defendant did not invoke his right to the assistance of counsel under Article I, section 12;  rather, by responding to the trooper's offer of privacy to make a phone call, defendant merely took advantage of his limited right to a reasonable opportunity to obtain legal advice before deciding whether to submit to a breath test under Article I, section 11, of the Oregon Constitution. For the reasons explained below, we affirm.
[263 Or.App. 660] We review a trial court's " denial of a motion to suppress for legal error and defer to the trial court's findings of historical fact if there is sufficient evidence to support them. Consistently with that standard, we take the following facts from the record of the suppression hearing." State v. Mitchele, 240 Or.App. 86, 88, 251 P.3d 760 (2010) (internal citation omitted).
Trooper Ratliff, a certified DRE, stopped defendant for failure to drive within the lane of traffic. Officer Gerig provided cover at the stop. Ratliff observed that defendant's face was pale, his speech was slurred, and his pupils were constricted and exhibited little to no reaction to light. Ratliff conducted a
brief investigation, read defendant Miranda warnings, and arrested him for DUII. Defendant did not, at that time, ask to speak to an attorney. Defendant did not invoke his right to remain silent.
Ratliff transported defendant to the Oakridge Police Department and escorted him to the Intoxilyzer room. After Ratliff and defendant sat down, Ratliff recited the standard " speech" that he gives to every DUII suspect, informing him " of his limited right to use a telephone prior to the administration of a breath test" :
" I told him he could make a phone call if he wanted to. He could make * * * as many phone calls as he wants. The only thing I do ask is if he chooses to call an attorney to let me ...