State v. Swan

A criminal defendant's consent to taking a breath test after the defendant's unequivocal invocation of the right to counsel does not violate Article I, section 12 of the Oregon Constitution, even where officers have previously violated the defendant's constitutional rights by asking questions after the defendant's unequivocal invocation. Consequently, the results of the consented-to breath test are not subject to the exclusionary rule.

Defendant was convicted of DUII and reckless driving, and appealed the trial court's partial denial of his motion to suppress evidence, specifically, the breath test results. Defendant was arrested after a traffic accident on suspicion of DUII, and while in custody, Defendant invoked his right to counsel. After that invocation, officers asked Defendant some questions about his alcohol consumption for the night as part of the report. Further, officers asked if Defendant would consent to a breath test, and Defendant did so, leading to the breath test evidence sought to be suppressed at trial. Defendant argued that under Article I, section 12 of the Oregon Constitution, the officers had violated his rights by both asking him questions after his unequivocal invocation of his right to counsel and for asking whether he would consent to the breath test. Because of these violations, Defendant argued, any resulting evidence should be suppressed. On appeal, the Court determined that the Defendant's own consent to the breath test was not a product of the earlier violation of Defendant's constitutional rights, and therefore the breath test was not subject to the exclusionary rule. Affirmed