and submitted November 10, 2016
review from the Court of Appeals. [*] CC 130242160; CA A154526
Montague, Deputy Public Defender, Offce of Public Defense
Services, Salem, fled the briefs and argued the cause for
petitioner on review. Also on the briefs was Ernest G.
Lannet, Chief Defender.
Benjamin Gutman, Solicitor General, Salem, argued the cause
for respondent on review. Joanna L. Jenkins, Assistant
Attorney General, fled the brief. Also on the brief were
Ellen F. Rosenblum, Attorney General, and Benjamin Gutman,
Balmer, Chief Justice, and Kistler, Walters, Flynn, Duncan,
and Nelson, Justices, and Lagesen, Judge of the Court of
Appeals, Justice pro tempore. [**]
Or. 122] Case Summary:
moved to suppress statements that he had made after being
arrested for Driving under the Influence of Intoxicants
(DUII), as well as derivative evidence, the results of a
breath test, on the ground that the officer had questioned
him in violation of the state constitution after he had
invoked his right to counsel. The trial court suppressed
defendant's statements but did not suppress the
derivative evidence, and the Court of Appeals affirmed. Held:
Defendant was entitled to suppression of evidence that
derived from custodial interrogation in violation of Article
I, section 12, of the Oregon Constitution. The court
disagreed with the state's argument that defendant's
decision to take the breath test attenuated the taint of the
immediately preceding constitutional violation. Not only was
there no break in time, place, or custody between the
officer's illegal interrogation of defendant and his
decision to take the breath test, but the state failed to
show that the decision to take the test did not derive from
defendant's answers to the interrogation. The court also
disagreed with the state's argument that the breath test
did not derive from the custodial interrogation because
defendant had no legal right to refuse the breath test
pursuant to Oregon's implied consent law.
decision of the Court of Appeals is reversed. The judgment of
the circuit court is reversed, and the case is remanded to
the circuit court for further proceedings.
Or. 123] KISTLER, J.
was arrested for driving under the influence of intoxicants
(DUII) and advised of his Miranda rights. In
response, he invoked his right to counsel. Afterwards, the
arresting officer asked defendant 28 DUII interview questions
and then asked if he would consent to a breath test.
Defendant moved to suppress his answers to the 28 questions
and all derivative evidence, which he argued included his
decision to take the breath test and the test results. The
state, for its part, conceded that asking defendant the 28
DUII interview questions after he had invoked his right to
counsel violated Article I, section 12, of the Oregon
Constitution. The state took the position, however, that
suppressing the officer's questions and defendant's
answers was sufficient to vindicate that right. The Court of
Appeals agreed and also observed that asking defendant for
consent to take a breath test did not constitute prohibited
"interrogation" under Article I, section 12.
State v. Swan, 276 Or.App. 192, 366 P.3d 802 (2016).
We allowed defendant's petition for review to consider
those issues and now reverse the Court of Appeals decision
and the trial court's judgment.
FACTUAL AND PROCEDURAL BACKGROUND
case arises out of defendant's claims that the arresting
officer violated his right to counsel under Article I,
section 11, and Article I, section 12, of the Oregon
Constitution. Before setting out the facts, we first describe
briefly those two state constitutional sources of a right to
I, section 11, provides that, "[i]n all criminal
prosecutions, the accused shall have the right * * * to be
heard by *** counsel." Ordinarily, the Article I,
section 11, right to counsel does not attach until
indictment. State v. Sparklin, 296 Or. 85, 92, 672
P.2d 1182 (1983); see State v. Davis, 350 Or. 440,
256 P.3d 1075 (2011) (analyzing the history of Article I,
section 11). However, this court has held that an Article I,
section 11, right to counsel can attach before indictment
when a driver is arrested for DUII. State v.
Spencer, 305 Or. 59, 74, 750 P.2d 147 (1988); see
State v. Durbin, 335 Or. 183, 63 P.3d 576 (2003) (same).
Or. 124] A DUII suspect's pretrial Article I, section 11,
right to counsel is "not as broad as the [Article I,
section 11, ] right to counsel that an accused enjoys at
trial." Durbin, 335 Or. at 189. The right
arises only "upon request" and consists of a
"reasonable opportunity to obtain legal advice before
deciding whether to submit to a breath test."
Spencer, 305 Or. at 74; see Durbin, 335 Or.
at 193-94 (holding that the right to consult with counsel
regarding whether to take a breath test ordinarily includes
the right to do so privately).
suspect also has an Article I, section 12, right to counsel
that derives from the state constitutional Miranda
right. State v. Haynes, 288 Or. 59, 71, 602 P.2d 272
(1979). That right attaches when a suspect who is in custody
or compelling circumstances invokes the right. See State
v. Roble-Baker, 340 Or. 631, 637-38, 136 P.3d 22 (2006)
(explaining when Article I, section 12, rights attach). Once
a suspect invokes his or her Article I, section 12, right to
counsel, the suspect "'is not subject to further
interrogation by the authorities until counsel has been made
available to him, '" unless the suspect initiates a
dialogue that leads to further questioning. State v.
Kelt, 303 Or. 89, 96, 734 P.2d 334 (1987) (quoting
Edwards v. Arizona, 451 U.S. 477, 484, 101 S.Ct.
1880, 68 L.Ed.2d 378 (1981)).
direct questions constitute "interrogation" for the
purposes of Article I, section 12. State v. Boyd,
360 Or. 302, 317-18, 380 P.3d 941 (2016). Rather,
"interrogation" refers to statements or questions,
other than questions normally attendant to arrest and
custody, that are reasonably "likely to elicit an
incriminating response." Id. at 312, 316-18;
State v. Scott, 343 Or. 195, 202-03, 166 P.3d 528
(2007). For several years, the Court of Appeals has held that
officers may ask a person arrested for DUII whether he or she
will take a breath or blood test without violating
Miranda. It has reasoned that asking a DUII suspect
to take a breath test is a question that is normally
attendant to arrest and custody and thus does not constitute
"interrogation" for the purposes of Article I,
section 12. State v. Higley, 236 Or.App. 570, 573,
237 P.3d 875 (2010); State v. Gardner, 236 Or.App.
150, 154-55, 236 P.3d 742, rev den, 349 Or. 173
(2010); see State v. Cunningham, 179 Or.App. 498,
502, 40 P.3d 535, rev den, 334 [363 Or. 125] Or. 327
(2002) (discussing related issue). With that background in
mind, we turn to the facts in this case.
approximately 3:00 a.m., Officer Enz received a report of a
traffic accident. When he arrived at the scene of the
accident, he saw a Dodge truck abandoned in the middle of an
intersection and a Subaru Outback nearby. Defendant was
sitting in the driver's seat of the Subaru. The officer
noticed that defendant's "eyes [were] closed and his
head kept bobbing forward." When the officer knocked on
the window to get defendant's attention, defendant tried
to roll the window down. After "several failed attempts
at finding the window lever, " defendant opened the
door. After speaking with defendant, the officer determined
that defendant appeared to be intoxicated "based on his
slurred speech, an odor of an alcoholic beverage that was
emanating from him, and [the fact that] his eyes were watery
on those observations, the officer told defendant that he
believed it was likely that defendant was impaired, and he
asked defendant if he would perform field sobriety tests. In
response, defendant asked for "an opportunity to speak
with his attorney." Officer Enz said that, "if
[defendant] had a cell phone * * * he could call the attorney
from the car." Defendant "started dialing a phone,
so [the officer] closed the car door and went to go take
measurements of the scene." Approximately 11 minutes
later, the officer went back to defendant and asked if
"would like to perform the voluntary field sobriety
tests." Defendant asked, "What exactly are you
asking me to do?" The officer described the tests, and
defendant repeated everything that the officer said into his
phone. Defendant then said to the officer, "Yes. Yes, I
did not do well on the field sobriety tests, and Officer Enz
told him that he was under arrest for DUII and advised him of
his Miranda rights. Among other things, Enz told
defendant that "[h]e ha[d] the right to have an [363 Or.
126] attorney with him while he's being questioned."
After being advised of those rights, defendant's
"first response was that he wanted to talk to his
attorney." The officer explained that defendant would
have "another opportunity to consult with somebody
privately when [they] got back to the precinct."
Defendant responded, "'Yes. *** Yes, I understand my
rights.'" The officer did not ask defendant any
questions between the second time defendant invoked his right
to counsel and the time they arrived at the precinct.
they got to the precinct, the officer provided defendant with
his cell phone, a landline, a phone book, and a copy of the
Implied Consent Combined Report. He told defendant that
"he could make as many calls as he'd like to
whomever he'd like and that [the officer would] be
closing the cell door to provide him privacy while he was on
the phone." After explaining the procedure for the
breath test, the officer closed the cell door at 3:47 a.m.
Twenty minutes later, the officer returned and found
defendant still on the phone. The officer told defendant that
he would "give him another minute or so to complete his
phone call, closed the cell, and again checked on him at 4:10
a.m. and found that he was finishing his phone call."
officer took defendant to another room, began the 15-minute
observation period required before administration of a breath
test, "conducted the DUII Interview Report [, ] and read
him the Implied Consent Combined Report in its entirety
verbatim." In conducting the DUII interview report, the
officer asked defendant "28 questions in
multiparts." Neither the officer's questions nor
defendant's answers are included in the
record. Similarly, a copy of the Implied Consent
Combined Report is not included in [363 Or. 127] the record,
although Enz testified at the hearing regarding three
warnings included in the report.
gone through that procedure, Enz asked defendant if
"he'd take a breath test." Defendant did not
answer but "just stared at [the officer] and started
reading the Implied Consent Combined Report." Enz told
him that he would "give him a moment to think about it
and that [he would] be asking him again when he started [the
breathalyzer machine]." At that point, defendant said
that he "would like to speak with his attorney before he
answered that question, " and Enz "explained to
[defendant] that he'd already been given ample time to
consult with someone for legal advice, both at the scene and
at the precinct." "At that point, [Enz asked
defendant] if he would take a breath test, to which he said,
'Yes.'" The breath test showed that
defendant's blood alcohol content (BAC) was .18.
Trial and Appellate Proceedings
state charged defendant with DUII and reckless driving.
Before trial, defendant filed two motions to suppress the
statements that he made to Officer Enz in response to the
questions on the DUII interview report and any derivative
evidence. The first motion contended that Enz had violated
Article I, sections 11 and 12, by asking defendant questions
from the DUII interview report after he had invoked his right
to counsel. Defendant's second motion claimed that
defendant's statements were involuntary because Enz
repeatedly had disregarded defendant's invocation of his
right to counsel.
response to defendant's motions, the state conceded that
asking defendant the questions from the DUII [363 Or. 128]
interview report after he invoked his right to counsel
violated Article I, section 12. It explained that, as a
result, it would not ask Enz at the suppression hearing about
either the questions he asked or the answers defendant gave
to those questions. Apparently, in the state's view, no
more was needed to remedy the Article I, section 12,
violation. Additionally, the state argued that it had
complied with Article I, section 11, by giving defendant the
opportunity to consult with his attorney before deciding
whether to take the breath test. The state did not address
whether defendant's decision to take the breath test and
the resulting test results derived from the conceded Article
I, section 12, violation.
considering the parties' arguments, the trial court
focused on defendant's Article I, section 11, right to
counsel. It concluded that, because Enz had provided
defendant with a reasonable opportunity to consult with
counsel before deciding whether to take the breath test,
defendant's decision to take the test and the test
results were admissible. The court accordingly denied
defendant's motions to suppress. Given the trial
court's ruling on his suppression motions, defendant
agreed to a stipulated facts trial based on the evidence
brought out at the suppression hearing. After considering
that evidence, the trial court convicted defendant of DUII
and reckless driving.
appeal, defendant challenged the trial court's ruling
denying his suppression motions, although his appellate
arguments were narrower than his arguments at trial. On
appeal, defendant expressly abandoned his argument that Enz
had violated his Article I, section 11, right to counsel. He
limited his arguments instead to Article I, section 12.
Specifically, defendant argued that Enz had violated Article
I, section 12, by eliciting his answers to the 28 DUII
interview questions after he had invoked his right to counsel
and that his consent to take the breath test and the test
results should be suppressed because they derived from his
answers to those questions. Defendant did not argue on appeal
that, once he invoked his Article I, section 12, right to
counsel, Enz could not ask him whether he would take a breath
test; that is, defendant did not argue that asking [363 Or.
129] whether he would take a breath test constituted
"interrogation" in violation of his Article I,
section 12, right to counsel.
analyzing defendant's arguments, the Court of Appeals
began by noting that it had "unequivocally rejected the
proposition that asking a person to take a breath test is
'interrogation'" for the purposes of Article I,
section 12. Swan, 276 Or.App. at 201 (citing Court
of Appeals decisions). The Court of Appeals then turned to