State v. Trenary , 114 Or. App. 608 ( 1992 )

De MUNIZ, J.

Defendant appeals his conviction for driving under the influence of intoxicants (DUII). ORS 813.010. He makes two assignments of error. He claims that the trial court erred when it denied his motion to suppress the results of field sobriety tests that he voluntarily took without first being advised of the consequences of refusal. He also claims that the results of his breath test should have been suppressed, because his right to consult a lawyer before taking the test was violated. We reverse and remand for a new trial.

On December 20, 1989, Oregon State Police Officer Foust stopped defendant, suspecting that he was driving while under the influence of an intoxicant. Foust advised defendant of his “Miranda rights,”¹ then asked him to perform some field sobriety tests.²

ORS 813.135 provides, in part:

“Before [field sobriety] tests are administered, the person requested to take the tests shall be informed of the consequences of refusing to take or failing to submit to the tests under ORS 813.136.”

ORS 813.136 provides:

“If a person refuses or fails to submit to field sobriety tests as required by ORS 813.135, evidence of the person’s refusal or failure to submit is admissible in any criminal or civil action or proceeding arising out of allegations that the person was driving while under the influence of intoxicants. ’ ’

Foust never informed defendant of the consequences of refusing to take the tests. Nonetheless, defendant voluntarily took them and “did very poorly.”

The first issue is whether Foust’s violation of ORS 813.135 requires suppression of the test results. ORS 813.135 makes no mention of any remedy if police fail to follow its requirements. The legislature has expressly required the exclusion of evidence that is obtained in violation of certain statutes, e.g.: ORS 133.673; ORS 133.735; ORS 136.695. In State v. Valentine/Darroch, 264 Or 54, 504 P2d 84 (1972), cert den 412 US 948 (1973), the Supreme Court observed:

“We have never excluded evidence because it was obtained in violation of a statute, as contrasted with a violation of the Federal or State Constitutions.” 264 Or at 68. (Emphasis supplied.)

That does not mean that courts will never suppress in the absence of a constitutional violation or an express legislative mandate. State v. Valdez, 277 Or 621, 629, 561 P2d 1006 (1977). Instead, we look

“to the character of the rule violated in the course of securing the evidence when deciding whether the rule implied a right not to be prosecuted upon evidence so secured.” State v. Ingram, 313 Or 139, 146, 831 P2d 674 (1992) (quoting State v. Davis, 295 Or 227, 235, 666 P2d 802 (1983)).

The evidence should be excluded, if doing so would effectuate the purpose of the statute. State v. Porter, 312 Or 112, 121, 817 P2d 1306 (1991); State v. Davis, supra, 295 Or at 236. Our first task, then, is to ascertain the legislature’s purpose when it enacted ORS 813.135. ORS 174.020; State v. Galligan, 312 Or 35, 39, 816 P2d 601 (1991).

ORS 813.320 provides:

“The provisions of the implied consent law, except ORS 813.300, shall not be construed by any court to limit the introduction of otherwise competent, relevant evidence in any civil action, suit or proceedings or in any criminal action other than a violation of ORS 813.010 or a similar municipal ordinance in proceedings under ORS 813.410.”

ORS 813.320 controls the admissibility of breath test results under the Implied Consent Law. The current version of that statute was in effect when the law of implied consent was extended in 1989 to encompass field sobriety tests.³ ORS 813.100(1) requires an officer to inform a driver who has been arrested for DUII of the “consequences and rights as described in ORS 813.130” before administering a breath test. (Emphasis supplied.) In contrast, ORS 813.135 only requires that the officer inform the driver “of the consequences of refusing to take or failing to submit to the [field sobriety] tests.” (Emphasis supplied.) Because the language of the two statutes is different, cases interpreting the admissibility of breath test results may be instructive, but they do not control the admissibility of field sobriety test results under ORS 813.135. See State v. Nguyen, 107 Or App 716, 813 P2d 569, rev den 312 Or 527 (1991); State v. Weisher, 78 Or App 468, 717 P2d 231, rev den 301 Or 338 (1986); State v. Creson, 33 Or App 369, 576 P2d 814 (1978).

In State v. Newton, 291 Or 788, 799, 636 P2d 393 (1981), the Supreme Court concluded that

“the consent envisioned by [ORS 813.100(1)] is to be implied and if submission is not forthcoming, it is to be coerced by fear of adverse consequences.” (Emphasis supplied.)

When Newton was decided, an officer’s duty to inform a driver of “consequences and rights” was triggered only if the driver had initially refused to submit to a request to take the breath test. 291 Or at 799. ORS 813.135 and the current version of ORS 813.100(1) now require an officer to give the requisite advice before administering field sobriety or breath tests, regardless of whether the driver initially refuses or complies.

The modification of ORS 813.100(1) has not changed its primary purpose. In State v. Spencer, 305 Or 59, 71, 750 P2d 147 (1988), the Supreme Court said:

“Consent [to submit to a breath test] being implied by law, a driver may not legally refuse. A driver, however, can physically refuse to submit, and [the law] forbids the use of physical force to compel submission. The history and development of the implied consent law * * * suggest that the advice to be given an arrestee was intended to provide an additional incentive, short of physical compulsion, to induce submission.” (Emphasis in original; footnotes omitted.)

The advice required by ORS 813.100(1) provides an incentive for the driver, short of physical compulsion, to conform his conduct to the requirements of the law by taking the tests that he has already consented to take. ORS 813.135 serves the same purpose, by informing the driver that he cannot avoid the adverse consequences of taking the tests and performing poorly simply by refusing to take them. The coercive nature of ORS 813.135 is underscored by the fact that it requires an officer to advise the driver only of the adverse consequences of refusing to take the field sobriety tests. Unlike ORS 813.100(1), it does not require the officer to impart any information of a protective nature.⁴

If the driver takes the field sobriety tests after being warned of the consequences of refusal, then the goals of the Implied Consent Law are fully realized. If he takes them without the coercive pall of the warnings, then the statutory purpose is fulfilled as a matter of coincidence. No further incentive or coercion is necessary, and the law does not require an officer to engage in a hollow exercise of reciting the warnings when it would serve no purpose. The trial court did not err by admitting evidence of the field sobriety tests.

Defendant is nonetheless entitled to a new trial. At the hearing on his motion to suppress, he testified that on the way to the police station, he made several requests to call his attorney to ask him to be present at the breath test. He repeated that request at the station, but was not allowed to call his lawyer, because Foust did not want to postpone the test until the lawyer arrived. Foust admitted that, “at one point, * * * he did state that he wanted an attorney present for the breath test.” However, Foust did not allow defendant to call his attorney, because “[h]e never actually asked to telephone counsel.” Defendant voluntarily took the breath test, and the results were admitted at his trial.

Defendant did not have the right to have his lawyer present during the breath test. State v. Gardner, 52 Or App 663, 629 P2d 412, rev den 291 Or 419 (1981). However, a suspect’s decision whether to take or refuse to take a breath test “is to be an informed one.” State v. Scharf, 288 Or 451, 458, 605 P2d 690 (1980). Accordingly, defendant did have the right to try to call his attorney before deciding whether to take the test. Or Const, Art I,- § 11; State v. Spencer, supra, 305 Or at 72-75.

Defendant’s attorney asked Foust, “If he had been more specific, if he had said T want to call my attorney,’ would you then have provided him the opportunity?” Foust answered, “Certainly.” The state argues, and the trial court agreed, that defendant did not invoke his right to counsel when he asked to have his attorney present for the breath test. In denying his motion to suppress the breath test results, the court said:

“He does have the right to get legal advice as to whether or not to take the test, but that is not what he requested to do. From what the officer said, and from what the defendant said, the only request was he wanted his attorney present.”

That ruling would require a person in custody to understand the subtle contours of his right to counsel. However, that right is premised on the proposition that untrained citizens are generally not experts in the law. Article I, section 11, does not require the precision that Foust expected. We recently held:

“An adequate invocation [of the right to counsel] is ‘any plain reference, however glancing, to a need or desire for representation.” State v. Wickey, 95 Or App 225, 230, 769 P2d 208 (1989) (quoting Connecticut v. Barrett, 479 US 523, 534, 107 S Ct 828, 93 L Ed 2d 920 (1987) (Brennan, J., concurring)).

Defendant made a plain reference (maybe several) to his desire for representation. When his request was denied, his right to counsel under Article I, section 11, was violated. The results of the breath test should have been suppressed.

Reversed and remanded for a new trial.

1 Article I, section 12, of the Oregon Constitution requires that a suspect in custody, or other sufficiently compelling circumstances, be given “Miranda-like” warnings before being interrogated. State v. Carlson, 311 Or 201, 204, 808 P2d 1002 (1991); State v. Smith, 310 Or 1, 7, 791 P2d 836 (1990); see Miranda v. Arizona, 384 US 436, 472-73, 86 S Ct 1602, 16 L Ed 2d 694 (1966).

2 A driver who has been lawfully stopped for DUII is “deemed to have given consent to submit to field sobriety tests” if the officer reasonably suspects that he has violated the DUII laws. ORS 813.135. Under ORS 813.100(1), a driver who has been arrested for DUII is “deemed to have given consent” to a breath test.

3 Or Laws 1989, ch 576, § 15. Former ORS 487.820 has been amended, without substantive modification, and renumbered as ORS 813.320. Or Laws 1983, ch 338, § 596; Or Laws 1985, ch 16, § 302.

4 For example, in State v. Creson, supra, we held that the breath test results should have been suppressed, because the arresting officer had warned the defendant that he could lose his license for refusing to take a breath test, but did not advise him that he had the right to have an independent blood alcohol test conducted.