Oregon Appellate Ct - Jan. 27, 2016
From OCDLA Library of Defense
by: Abassos • January 27, 2016 • no comments
Breath Test - Implied Consent Can Break the Chain Between an Article I, Sec. 12 Violation and Consent to a Breath Test
Defendant's consent to take a breath test was sufficiently attenuated from the officer's post-invocation questioning where:
- The violation itself was not flagrant. The officer asked the standard DUII interview questions as part of the breath test protocol. And the officer did not press defendant when he chose not to answer a question. The information given in response to the questioning was properly suppressed. But the violation was less flagrant than other similar cases.
- A thorough implied consent process broke the causal chain
- The consent was prompted by legally obtained evidence, not the illegally obtained statements
Thus, despite the fact that defendant remained in custody, "considering all the circumstances" defendant's decision to consent to the breath test was not a product of the prior Article I, Sec. 12 violation.
State v Swan, 276 Or App 192 (2016).
