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by: Rankin Johnson IV • June 25, 2018 • no comments

Summarized by Rankin Johnson, OCDLA

  • SELF-INCRIMINATION -- Suppression and exploitation

Interrogating arrested DUII suspect in violation of right to counsel tainted subsequent request for breath test. Reversed.

Defendant was arrested for DUII and invoked his right to counsel. Defendant was given an opportunity to call a lawyer, and attempted to do so. Thereafter, the arresting officer asked defendant a series of questions and asked him to take a breath test.

The Supreme Court explained that the defendant had an Article I, section 11 right to counsel that included the right to a reasonable opportunity to consult with counsel before deciding whether to take a breath test. That right was not violated.

The defendant also had an Article I, section 12 Miranda-like right to counsel. That right was violated when, after asking for counsel, defendant was questioned. And the state did not bear its burden to prove that the subsequent breath test was not exploitive of the Article I, section 12 violation. Thus, the breath test was suppressible.

The court discussed the implied-consent statutes, and ultimately rejected the state’s argument that defendant’s statutorily-implied consent overcame the earlier constitutional violation.

State v. Swan 363 Or 121 (June 21, 2018) (Kistler, J.)