State v. Groner

An individual suspected of DUII has only the right to a reasonable opportunity to contact an attorney, not the right to have an attorney present; therefore, the presence of an attorney as a condition to submitting to a breath test constitutes a refusal.

The State appealed the trial court's suppression of Defendant's refusal to submit to a breath test. Defendant was arrested on suspicion of DUII and was taken to jail where he was informed of Oregon's implied consent law and asked to take a breath test. Defendant stated that he would only submit to the breath test with an attorney present. After several explanations of the law and several offers to contact an attorney, including being placed in a room with a telephone directory and telephone, Defendant again insisted he would submit to the breath test only if an attorney was present. Defendant remained in the room for five or ten seconds then exited. The arresting officer informed Defendant that the response would be considered a refusal. Defendant moved to suppress the refusal to submit to the breath test arguing that he was not given a reasonable opportunity to consult with an attorney. The court granted the motion to suppress the evidence and the State appealed. The Court of Appeals held that an individual need only be given the opportunity to contact counsel, not that they must choose to do so, and that Defendant in this case had reasonable opportunities. The refusal to submit to the breath test except in the presence of an attorney is not required by law, as was explained to Defendant, so his insistence on that point constituted a refusal under the circumstances. Reversed and remanded.