Argued and Submitted November 14, 2013.
Multnomah County Circuit Court 111253996. Jerome E. LaBarre, Judge.
Richard E. Oberdorfer argued the cause for appellant. With him on the brief was Oberdorfer Law Firm LLC.
Pamela J. Walsh, Senior 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.
Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.
[269 Or.App. 305] ORTEGA, P. J.
Defendant appeals a judgment of conviction for misdemeanor driving under the influence of intoxicants (DUII), ORS 813.010. Although defendant asserts numerous assignments of error, we write to address only two, and affirm as to the others without discussion. Defendant assigns error to the trial court's denial of his motion to suppress statements made after he invoked his right to counsel. Defendant also assigns error to the trial court's refusal to give his proposed jury instructions regarding the necessity of proving a voluntary act. We conclude that we need not decide whether the trial court erred in denying defendant's motion to suppress because any error in admitting defendant's statements was harmless. We also conclude that the trial court did not err in refusing to give the proposed jury instruction because there was no evidence in the record to support defendant's theory of the case. Accordingly, we affirm.
When reviewing a ruling on a motion to suppress, " [a] trial court's findings of historical fact are binding on appellate courts if there is constitutionally sufficient evidence in the record to support those findings." State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993). We state the facts in accordance with that standard of review.
Bystanders found defendant unresponsive behind the wheel of his car, with the engine running, in the slow lane of traffic on Barbur Boulevard in Portland. Officer Myers arrived and successfully revived defendant. Upon waking, defendant believed that he was sleeping in his home. Once defendant complied with Myers's request that he step out of the car, Myers smelled a " moderate" odor of alcohol and noticed that defendant was swaying. Defendant denied alcohol and drug use.
Paramedics arrived and agreed with Myers that defendant was intoxicated and had not been involved in an accident. Myers arrested defendant, advised him of his Miranda rights, and placed him in custody. Myers asked defendant if he understood his Miranda rights. Initially, defendant kept repeating in response, " I was sleeping, though." Myers asked again, and defendant responded, " I guess so."
[269 Or.App. 306] Once defendant was in custody at the police station, Officer Thorsen arrived and began the implied consent breath test process. Defendant asked Thorsen if he could use a phone to call his parents and then, about ten minutes later, asked to contact an attorney. Thorsen then read aloud part of the DUII form stating that defendant had a right to privately consult with an attorney before agreeing to DUII testing. Thorsen put defendant in a room with a phone and a phone book, and told defendant that he could contact whomever he wanted. Thorsen informed defendant that he would be back in about 20 minutes and left him alone--but when Thorsen returned, defendant was asleep.
Thorsen woke defendant and escorted him into an interview room, which contained an Intoxilyzer machine. Defendant said that he had not been able to contact an attorney; Thorsen again advised him of his Miranda rights, and defendant affirmed that he understood those rights. Thorsen proceeded to ask defendant a series of questions, which defendant answered to the effect that he did not remember driving and had not consumed alcohol or drugs. Defendant said that he owned the car in which he was found; that, as far as he knew, he had driven alone; that he was not diabetic, ...