State v. Swan

“When a suspect’s decision to submit to a breath test derived from a violation of his or her Article 1, section 11, right to counsel, both the decision and the test results are subject to suppression.” State v. Spencer, 305 Or. 59, 75-76, 750 P.2d 147 (1988).

Defendant appealed a conviction of DUII and argued that his breath test results should have been suppressed because once he invoked his right to counsel, no further interrogation could occur without his counsel present. Defendant further argued that asking whether he would take a breath test instituted “interrogation” prohibited by Article 1, Section 12, and his decision to take the breath test, and the results, were the product of the officer’s Article 1, section 12, violation. In response, the state argued that the administration of the breath test resulted from the operation of the implied-consent law rather than the violation of defendant’s right to counsel. “When a suspect’s decision to submit to a breath test derived from a violation of his or her Article 1, section 11, right to counsel, both the decision and the test results are subject to suppression.” State v. Spencer, 305 Or. 59, 75-76, 750 P.2d 147 (1988). The Court found that the implied-consent statutes do not require the admission of the breath test results when a DUII suspect’s decision to take the breath test is the product of a violation of their right to counsel. The Court held that the breath test results should have been suppressed as a product of the violation of defendant’s Article 1, section 12, right to counsel. Reversed and remanded.