Argued and Submitted July 31, 2013.
Curry County Circuit Court. 11CR0023. Jesse C. Margolis, Judge.
Andrew D. Robinson, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Paul L. Smith, 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 Haselton, Chief Judge, and Wollheim, Senior Judge.[*]
[267 Or.App. 714] DUNCAN, P. J.
In this criminal case, defendant appeals the trial court's judgment convicting him of driving under the influence of intoxicants (DUII), ORS 813.010, and reckless driving, ORS 811.140. He assigns error to the court's denial of his motion to suppress evidence of the results of an Intoxilyzer test (breath test), arguing that the evidence is inadmissible because it was obtained in violation of his right, under Article I, section 11, of the Oregon Constitution, to a reasonable opportunity to obtain legal advice before deciding whether to submit to the test. For the reasons explained below, we agree. Accordingly, we reverse and remand.
The relevant facts are undisputed, and we state them in accordance with the trial court's express and implied findings. State v. Ehly, 317 Or 66, 75, 854 P.2d 421 (1993) (when we review a trial court's denial of a defendant's motion to suppress, we are bound by the trial court's fact findings if there is constitutionally sufficient evidence to support them). Corporal Wood of the Gold Beach Police Department arrested defendant for DUII and reckless driving and transported him to the Curry County Jail. At the jail, Wood advised defendant of his rights under the Implied Consent Law, see ORS 813.130, and began observing defendant as required before administration of a breath test, see OAR 257-030-0070(2)(a). Wood asked defendant if he would take a breath test, and defendant stated that he wanted to call his attorney, Gardner. Wood provided defendant a list of attorneys and their phone numbers. Defendant had trouble reading the list and asked Wood to read him Gardner's telephone number. A jail staff member who happened to be passing by informed defendant that Gardner was in court. Nevertheless, defendant proceeded to call Gardner's office.
Defendant did not reach Gardner directly; however, he spoke with Gardner's receptionist who stated that Gardner was in court. Defendant told the receptionist that [267 Or.App. 715] he had been arrested for DUII and did not know whether to take the breath test. During defendant's conversation with the receptionist, Wood remained within earshot of defendant; he stood at a desk approximately five to ten feet away from defendant.
When the observation period ended, defendant submitted to a breath test, during which he provided two breath samples. Each sample indicated that defendant's blood alcohol content was above the legal limit of 0.08.
The state charged defendant with DUII and reckless driving, and defendant moved to suppress the breath test results, arguing, inter alia, that Wood had violated his right to counsel under Article I, section 11, by remaining within earshot during his conversation with Gardner's receptionist. The trial court denied the motion, reasoning that Wood had not violated defendant's right to counsel because he had ...