On January 27, 2016, the Oregon Court of Appeals issued an opinion regarding the admissibility of a breath test result after unlawful questioning by police in a DUI case. In State v. Swan, 276 Or App 192 (2016), Defendant was arrested on suspicion of DUI after a traffic crash. Defendant invoked his right to have an attorney present during questioning by the police, after which police were not permitted to “interrogate” him until he had an attorney present or waived his invocation.
In this case, however, the officer conducted a “DUI interview” after Defendant had invoked his right to have counsel present, asking Defendant about his alcohol consumption and driving. At trial, the evidence obtained from the DUI interview was suppressed pursuant to a stipulation by the state, as the interview violated his constitutional right to have counsel present during questioning, but the breath test was not suppressed. The issue on appeal was whether the officer’s subsequent request for Defendant to take a breath test, and the evidence obtained from the breath test, should have been suppressed due to the violation of Defendant’s rights.
At the outset, the Court noted that requesting a breath-test is not itself an “interrogation,” so the question was whether the breath-test evidence “derived from” the constitutional violation of conducting the DUI interview after Defendant invoked his right to counsel. In determining whether evidence “derived from” the constitutional violation, the Court of Appeals examined four factors: (1) “the nature of the violation”; (2) “the amount of time between the violation and any later statements”; (3) “whether the suspect remained in custody before making any later statements”; (4) “subsequent events that may have dissipated the taint of the earlier violation”; and (5) “the use that the state has made of the unwarned statements.” State v. Jarnagin, 351 Or 703, 716-17 (2012).
After a review of these factors, the Court found that the breath test evidence did not derive from the constitutional violation. The Court focused on several facts that supported this finding: (1) The DUI interview was conducted in a non-coercive manner; (2) there was a short but significant break between the violation and the request for the breath test sufficient to break the causal chain between the two events; (3) Defendant had over 20 minutes to consult with an attorney and did not; (3) the officer twice read Defendant the “implied consent” information (which informs suspects of their options with regard to taking a breath test), and Defendant read the implied consent information himself a third time; and (4) the information gained from the illegal DUI interview did not prompt the request for a breath test, as the officer already had ample observations of intoxication.
Since the breath test did not “derive from” the illegally conducted DUI interview, the Court of Appeals affirmed the trial court’s decision not to suppress the breath test.