DUII Appeal - Oregon Refuses to Suppress Test Refusal

This case comes to DAD thanks to Bruce Tarbox. In State of Oregon v. Robinson, NCDD Former Regent John Henry Hingson appealed after a jury finding of guilty, arguing that the trial court should have suppressed evidence of his refusal to take the breath test and, in any event, should have declared a mistrial when the prosecutor later referred to defendant's statement that he refused to take the test on advice of counsel as an “excuse” for not taking the test.

After receiving a citizen's report about a suspected drunk driver, Officer Moyle located defendant, whose vehicle matched the caller's description, and arrested him. One of the officers, Moyle, drove defendant to jail, escorted him to a small room, and asked him whether he wanted to contact “anyone for advice.” Defendant stated that he did, and Moyle gave defendant 20 minutes to contact someone. Defendant attempted to call his attorney during that time but was unsuccessful. Moyle then told defendant that his time was up and asked defendant whether he would submit to a breath test. Defendant, unable to contact his lawyer, refused to submit to the test. He was ultimately charged with driving under the influence of intoxicants (DUII),

At 1:29 a.m., “from outside the Intoxilyzer room,” Moyle told defendant “that he needed to finish up on the phone” and that he “had about a minute longer.” At 1:30 a.m., Moyle “opened the door and told [defendant] that he needed to be done now.” Defendant responded “that he hadn't been able to contact John Henry,[[FN1] and that he wasn't—he wasn't answering and he got a weird message.”

FN1. The parties agree that “John Henry” referred to defendant's attorney, John Henry Hingson III.
Before trial, defendant moved to suppress evidence of his refusal to take the breath test on the ground that the police had not provided him with a reasonable opportunity to communicate privately with counsel before deciding whether to submit to the test. He claimed that Moyle failed to take the proper steps to afford him a reasonable opportunity to consult privately with counsel. Specifically, defendant argued that (1) Moyle failed to request that defendant submit to the breath test before providing him an opportunity to seek counsel; (2) defendant's equivocal invocation of the right to counsel-that is, answering affirmatively to the question whether he wanted to “call anyone for advice”-required Moyle to further inquire if defendant intended to contact counsel and, if so, to inform defendant that the conversation would be private; and (3) no reasonable person in defendant's position would have understood his communications with counsel to be private with the door left ajar.

At that point, Moyle began the process of obtaining breath samples. He gave defendant directions on how to provide proper samples and where to stand. He then “told him this was his opportunity to give the samples” and that “if he chose not to give the samples, it would be considered a refusal.” Defendant explained, “I can't get ahold of my attorney. I'm not saying I won't take the test, but since I can't get ahold of him I don't know what to do.” Defendant emphasized that “it was very important that [Moyle] understood that.” When Moyle presented the Intoxylizer tube to defendant and asked him to give the sample, defendant “continued to say he wasn't refusing.” Defendant “neither grabbed the tube, nor gave the sample,” and Moyle informed defendant that he “would be taking his lack of beginning to give samples as a refusal.”

The court held that the request for a breath test need not precede the suspect's opportunity to consult with an attorney:

"Neither this court nor the Oregon Supreme Court has ever endorsed a particular script or timeline that officers must follow in order to afford an arrested driver a reasonable opportunity to obtain advice of counsel before submitting to a breath test."

The appeals court concluded that the refusal was properly admitted at trial:

"Setting aside the obvious differences between an officer present in the room and a door slightly ajar, there is no basis on this record to conclude that the cracked door had any effect on defendant's efforts to contact counsel. The reason that defendant was unable to contact counsel was that his attorney “wasn't answering and he got a weird message”; that had nothing to do with the fact that the door was cracked two inches. Defendant was given a reasonable opportunity to contact an attorney but was unable to do so, through no fault of the police. Defendant's right to consult privately with an attorney extends no farther than that, and the trial court did not err in denying his motion to suppress evidence of his refusal to submit to a breath test."

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