City of Roseburg v. Dykstra

EDMONDS, J.

Defendant appeals from a conviction for driving while under the influence of intoxicants.¹ ORS 813.010. He assigns error to the trial court’s denial of his motion to suppress the Intoxilyzer test result. We affirm.

At the hearing on the motion to suppress, counsel for the parties stipulated that the only facts relevant to the motion were that defendant was afforded an opportunity to consult with counsel before taking the test, but that counsel was not allowed to be present while the test was being performed. No witnesses or other evidence were adduced. Based on the stipulated facts, defendant argues that he was denied his right to counsel at a critical stage of the proceeding, because his lawyer was not permitted to be present when the test was performed. The state argues that the trial court correctly denied the motion to suppress, because Article I, section 11, of the Oregon Constitution requires only that a defendant be afforded a reasonable opportunity to consult with counsel before taking the test and that that opportunity was realized.

In State v. Trenary, 114 Or App 608, 836 P2d 739 (1992), aff’d on other grounds 316 Or 172, 850 P2d 356 (1993), we decided this issue. There, the defendant was not allowed to call his attorney because, according to the arresting officer, he did not ask to consult with counsel but wanted counsel to be present at the test. Because the officer did not wish to postpone the test until the attorney arrived, he did not permit the defendant to call his attorney. We analyzed the issue under section 11:

“Defendant did not have the right to have his lawyer present during the breath test. However, a suspect’s decision whether to take or refuse to take a breath test ‘is to be an informed one.’ Accordingly, defendant did have the right to try to call his attorney before deciding whether to take the test.” 114 Or App at 613. (Citations omitted.)

Our holding in State v. Trenary, supra, is consistent with our decision in State v. Gardner, 52 Or App 663, 629 P2d 412, rev den 291 Or 419 (1981), in which we considered whether the right to consult with counsel under the Sixth Amendment included the right to have counsel monitor and be a witness to the administration of an Intoxilyzer test. We said:

“We also hold that counsel need not be present during administration of the breath test itself. In discussing the administration of scientific tests used in criminal investigation, such as fingerprinting and blood samples, the Supreme Court in United States v. Wade, [388 US 218,227-28, 87 S Ct 1926, 18 L Ed 2d 1149 (1967)], stated:

“ ‘Knowledge of the techniques of science and technology is sufficiently available, and the variables in techniques few enough, that the accused has the opportunity for a meaningful confrontation of the Government’s case at trial through the ordinary processes of cross-examination of the Government’s expert witnesses and the presentation of the evidence of his own experts. The denial of a right to have his counsel present at such analyses does not, therefore violate the Sixth Amendment; they are not critical stages since there is minimal risk that his counsel’s absence at such stages might derogate from his right to a fair trial.’

“See also, United States v. Ash, 413 US 300, 315, 93 S Ct 2568, 37 L E[d] 2d 619 (1983) (counsel not required at post-indictment photographic display); Gilbert v. California, 388 US 263, 267, 87 S Ct 1951,18 L Ed 2d 1178 (1967) (counsel not required at taking of handwriting exemplars from accused). We think that the same rationale applies to the administration of a breath test. A meaningful challenge to the evidentiary use of the test or the accuracy of its result is not dependent on counsel’s presence during the test. The officer administering the test can be cross-examined at trial. Defendant can request her own test and introduce the results at trial. Finally, defendant can challenge the accuracy of the test and the meaning of its results with her own expert witnesses. We hold that the statutory scheme does not violate defendant’s Sixth Amendment right to counsel.” 52 Or App at 668.

The dissent would hold that defendant is entitled under section 11 to have counsel present during an Intox-ilyzer test even though he had the opportunity to consult with counsel before taking the test, because “[i]f an arrested person’s right to counsel attaches before that person submits to a breath test, that right must continue to exist at the time of the test.” 121 Or App at 325. The dissent says that result is dictated by several precedents including State v. Spencer, 305 Or 59, 750 P2d 147 (1988), and State v. Sparklin, 296 Or 85, 672 P2d 1182 (1983).

In Spencer, the court modified its holding in State v. Newton, 291 Or 788, 636 P2d 393 (1981), which held that the right to seek the advice of counsel attaches only after a formal charge is filed. It said:

“In the present decision, however, we do not rely on the Newton ‘restriction of liberty’ theory, but on the denial of defendant’s right to counsel under the Oregon Constitution. We hold that defendant demonstrated an adequate causal relationship — if any need to be shown — by testifying that he requested an opportunity to call his attorney and that he ‘would have liked to have had’ that attorney’s advice before deciding whether to take the breath test.” 305 Or at 75-76.

Here, unlike in Spencer, defendant’s invocation of the right to consult with counsel was honored by the police. It was only after defendant had finished the consultation with his attorney and had elected to take the test that the attorney was excluded from observing the administration of the test.

The Spencer court, in quoting State v. Sparklin, supra, 296 Or at 92 n 9, said:

“There can be no question that the right to an attorney during the investigative stage is at least as important as the right to counsel during the trial itself. Where once the primary confrontation between state and individual occurred at the trial, now ‘the point at which the individual first confronts the amassed power of the state has moved back in the process from trial to the police stage.’ ” 305 Or at 73. (Citation omitted.)

From that language, the dissent concludes that the right to have counsel includes the right to have counsel present at the Intoxilyzer test to insure fairness. The logical extension of that conclusion is that section 11 guarantees the right of a defendant to have his attorney monitor every investigatory action by the police in the course of their investigation.

That cannot be what the framers of the constitution intended. It would mean that the right to have counsel present would exist whenever the police seized blood, hair, semen, saliva, fingerprints, a handwriting exemplar or other evidence from a defendant. The resulting repetitive interruptions in the investigation would effectively stymie every police investigation. The dissent’s result would be an unprecedented interference in the ability of the prosecution to prepare its case and would render unworkable a law enforcement process that is currently inundated with a greater case load than it can effectively handle.

Moreover, the language in State v. Sparklin, supra, does not require that result. The issue in that case was whether the defendant’s request for an attorney at arraignment barred all police interrogation undertaken without the presence of counsel unless the defendant volunteered information on his own initiative and not in response to questioning. The court held that the defendant did not invoke his rights under either the Oregon or the federal constitutions to be free from questioning merely by having requested an attorney at his arraignment, and that his subsequent waiver of the right to remain silent and to have an attorney present at the questioning was valid. It also said that the fact that counsel had been appointed for the defendant at arraignment on the charge of forgery did not preclude police interrogation in the absence of counsel with respect to factually unrelated murder and robbery investigations, at least where the pre-interrogation rights waiver was voluntary. This case presents a different issue than was decided by either Spencer or Sparklin, because it involves not whether defendant had the benefit of the advice of counsel, but whether section 11 guarantees the presence of counsel during the test.

Section 11 guarantees the right of counsel to be present at any stage of the criminal prosecution “at which a defendant is to be ‘heard,’ including the sentencing stage, whether this is wholly performed by the judge or shared with non-judicial persons.” State ex rel Russell v. Jones, 293 Or 312, 315, 647 P2d 904 (1982). An Intoxilyzer test is not that kind of event. The right to the presence of counsel also is guaranteed under section 11 when there is police or court-ordered interrogation that would implicate the rights against self-incrimination. See e.g., State v. Sparklin, supra, 296 Or at 89; State v. Mains, 295 Or 640, 669 P2d 1112 (1983). An Intoxilyzer test does not implicate those rights. The consent to an Intoxilyzer test is implied by law and a driver of a motor vehicle may not legally refuse to take it. State v. Spencer, supra, 305 Or at 71. Thus, in fact, there is no precedent that compels the dissent’s proposed result.

The dissent is left with the argument that the presence of counsel is necessary to ensure the fairness of the criminal prosecution. This argument is analogous to the rationale that a defendant has the right to have counsel present at “critical stages of the criminal prosecution.”² That rationale is employed by courts when rights cannot be protected without the presence of counsel. The administration of an Intoxilyzer test is rigidly regulated by seven pages of administrative rules. See OAR 257-30-005 through 257-30-100. Those rules require the officer administering the test to follow a checklist of performance steps and to record each step. The analysis as to whether the right to have counsel present is similar to what we used in State v. Gardner, supra, when we held that the Sixth Amendment did not include the right to have counsel present at the test. An Intoxilyzer test is not an event peculiarly riddled with innumerable dangers and variable factors that could crucially derogate from a fair trial, because what occurred can be reconstructed at trial. See United States v. Wade, supra, 388 US at 228-29. In that sense, there is far less inherent danger of a miscarriage of justice than in other investigatory procedures, also for which no precedent requires counsel to be present.

The dissent would rewrite section 11 to provide that the right to be heard through counsel includes the right to have counsel accompany the police through each investigative step, whenever the defendant is the subject of the investigation. Its reasoning that, because an arrested person’s right to counsel attaches before the submission to an Intoxilyzer test, that person necessarily has the right to have counsel monitor the test, misses the point. Not all post-arrest conduct of the police implicates the right to have counsel present.³ Nothing about the administration of an Intoxilyzer test requires counsel to be present to protect a constitutional right of a defendant. In its zeal to protect the interests of those taking the Intoxilyzer test, the dissent would create a constitutional right that does not exist. The trial court did not err when it denied defendant’s motion.

Affirmed.

1 Defendant was issued a citation for driving under the influence of intoxicants, in violation of state statute. The citation was filed in the City of Roseburg Municipal Court. Defendant went to trial and was found guilty. He appealed to the Douglas County District Court where he was subsequently found guilty after a second jury trial.

2 In State ex rel Russell v. Jones, supra, Justice Lent recognizes that the “critical stage test” continues to exist as part of the analysis under section 11 when he notes that the right to be heard under section 11 is not limited to “critical stages” of the prosecution. 293 Or at 321 (Lent, J., concurring).

3 In an administrative proceeding, the Supreme Court has held that a reasonable opportunity to consult with counsel before taking an Intoxilyzer test does not mean that a defendant has a right to an observed telephone conference with his lawyer. See Gildroy v. MVD, 315 Or 617, 622, 848 P2d 96 (1993).