STATE v. LILE

The right to counsel under Article 1, section 11 of the Oregon Constitution includes the right to privacy when communicating with an attorney through the attorney’s representative.

Defendant appealed his conviction of driving under the influence of intoxicants (DUII), arguing that the trial court erred in its denial of his motion to suppress evidence of the results of an Intoxilyzer test (breath test). The officer who arrested Defendant for DUII (the officer) had asked Defendant if he would like to take a breath test. Defendant responded by stating that he wanted to speak with his attorney (the attorney). Defendant could reach only the attorney’s receptionist (the receptionist) by telephone, who he told of his arrest and that he was unsure whether he should take the breath test. During this conversation, the officer stood within earshot of Defendant. Defendant ultimately submitted to the breath test, which indicated a blood/alcohol content above the legal limit. On appeal, Defendant argued that his right to speak privately to an attorney was violated because that right includes the right to speak privately with an attorney’s representative, the receptionist. The State argued that that right does not include the right to speak privately with an attorney’s representative. The Court held that the right to counsel under Article 1, section 11 of the Oregon Constitution includes the right to privacy when communicating with an attorney, through the attorney’s representative. It reasoned that the receptionist was the means through which Defendant could confidentially communicate with counsel, and that the officer violated Defendant’s right to do so when he remained within earshot of Defendant’s conversation, and, because the officer violated Defendant’s rights, the trial court erred in its denial of Defendant’s motion. Reversed and remanded.