State v. Hernandez

326 P.3d 1285, 263 Or. App. 46, 2014 Ore. App. LEXIS 677
CourtCourt of Appeals of Oregon
DecidedMay 21, 2014
Docket107134; A148108
StatusPublished

This text of 326 P.3d 1285 (State v. Hernandez) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hernandez, 326 P.3d 1285, 263 Or. App. 46, 2014 Ore. App. LEXIS 677 (Or. Ct. App. 2014).

Opinion

DUNCAN, P. J.

Defendant appeals a judgment of conviction for driving under the influence of intoxicants (DUII), ORS 813.010. He claims that the trial court erred in denying his motion to suppress evidence of his refusal to take an Intoxilyzer breath test because the state failed to prove that he knowingly waived his right to consult privately with counsel before deciding whether to take the test. Because, as explained below, defendant did not preserve that claim, we affirm.

On December 7, 2010, Deputy Hanratty of the Tillamook County Sheriffs Office arrested defendant for DUII. Hanratty transported defendant to the county jail. The parties dispute what happened at the jail. According to the state, after arriving at the jail, Hanratty administered several field sobriety tests to defendant and then took him to the Intoxilyzer room. Hanratty read defendant an “implied consent” form and asked defendant if he would agree to take a breath test. In response, defendant said that he wanted to speak with an attorney. At that point, Hanratty left the room and asked Deputy Roberts, who worked in the jail, to bring defendant a phone. Roberts brought a phone into the Intoxilyzer room, while Hanratty observed Roberts and defendant through a window. Roberts set up the phone and stayed in the room with defendant. Hanratty indicated that, “after a while,” he saw Roberts carrying the phone away from defendant. Hanratty asked Roberts what had happened, and Roberts said that defendant no longer wanted to talk with an attorney. Hanratty then confirmed with defendant directly that he no longer wanted to talk with an attorney. Hanratty then asked defendant whether he would take the breath test, and defendant refused.

Defendant had a different view of what transpired at the jail. Before trial, he moved to suppress evidence of his refusal on the grounds that he was denied the right to speak with an attorney before taking the breath test. See State v. Spencer, 305 Or 59, 74-75, 750 P2d 147 (1988) (holding that, under Article I, section 11, of the Oregon Constitution, an arrested driver, upon request, has the right to a reasonable opportunity to consult with an attorney before deciding [49]*49whether to submit to a breath test). Defendant asserted that he had asked to speak with an attorney and was denied a reasonable opportunity to do so; he contended that he never withdrew his request to consult with counsel. He claimed that there had been a breakdown in communication, and that he had not understood what was being asked of him when he allegedly said that he no longer wanted an attorney because he is unable to understand or to speak English and because the Sheriffs Office failed to provide a Spanish interpreter in the Intoxilyzer room. Defendant relied upon ORS 133.515(2)1 and Staglin v. DMV, 227 Or App 240, 205 P3d 90, rev den, 346 Or 364 (2009), to argue that the officers’ failure to provide an interpreter caused a miscommu-nication that denied him his “right to communicate” with an attorney.

The trial court denied defendant’s motion to suppress the breath test refusal and issued written findings of fact and conclusions of law. In its ruling, the court found “that Deputy Hanratty was credible and the Defendant was not” and the court also found that “Defendant does understand English to some degree.” The court concluded:

“Regarding the question did the Deputies accommodate the Defendant’s request to communicate with Counsel, the Defendant told Deputy Roberts that the Defendant did not want to speak with a lawyer and handed Deputy Roberts the phone back. The Defendant verbally and physically communicated that he did not want to speak with a lawyer at that time. Deputy Hanratty then questioned the Defendant about changing his mind in that room on the night of the incident. The Defendant said he did not want to speak to an attorney. The Defendant’s statement that the Deputies misunderstood him is not well taken. Deputy Hanratty spoke to the Defendant at the jail in English. The Defendant went through the Field Sobriety Tests with communication done in English. The Defendant was asked the questions on State’s Exhibit #1 [Alcohol Influence [50]*50Interview Report] in English and without an interpreter those questions were answered. After the Breath test was refused the Deputy started the booking process and asked the Defendant his cell phone number. At that point the Defendant said he did not understand. But when Deputy Hanratty turned over the booking process to Deputy Roberts, Deputy [Roberts] asked the exact same question in English and the Defendant answered in English.
“The Court finds that the Deputy did accommodate the Defendant’s request to speak to an attorney.”

After the denial of defendant’s motion to suppress, the case was tried to a jury, and defendant was convicted of DUII. Defendant appeals.

On appeal, defendant argues that the trial court erred in denying his motion to suppress because the state did not carry its burden of proving that defendant “knowingly waived” his “right to speak privately with an attorney.” (Emphasis in original.) Defendant argues that, because Roberts stayed with defendant in the Intoxilyzer room during the time when he was permitted to call an attorney and because the record is “devoid” of any evidence that Roberts informed defendant that he would be given privacy during the call once he contacted an attorney, defendant’s failure to call an attorney cannot be considered a “knowing waiver.” Defendant relies on State v. Matviyenko, 212 Or App 125, 130, 157 P3d 268 (2007), in which we held that, “when a DUII arrestee has asked to call an attorney, if an officer intends to remain seated in the room until the call is made, * * * the onus is properly on the officer to inform the arrestee — before the call is made — that, once he or she contacts an attorney, privacy will be afforded.”

Before we can address the merits of defendant’s argument on appeal, we first must determine whether defendant’s argument is adequately preserved. State v. Wyatt, 331 Or 335, 345-47, 15 P3d 22 (2000). We will not review an unpreserved claim of error unless it is an “error of law apparent on the record.” ORAP 5.45(1); see also Ailes v. Portland Meadows, Inc., 312 Or 376, 381-82, 823 P2d 956 (1991) (stating standards that appellate courts apply when reviewing [51]*51such errors). “The determination whether a particular issue was preserved for appeal is a practical one and depends on whether the policies behind the preservation requirement are met in an individual case.” State v. Whitmore, 257 Or App 664, 666, 307 P3d 552 (2013) (citations omitted). The focus in determining whether an issue has been adequately preserved in a particular case is “whether a party has given opponents and the trial court enough information to be able to understand the contention and to fairly respond to it.” State v. Walker, 350 Or 540, 552, 258 P3d 1228 (2011); Wyatt, 331 Or at 343 (“[A] party must provide the trial court with an explanation of his or her objection that is specific enough to ensure that the court can identify its alleged error with enough clarity to permit it to consider and correct the error immediately, if correction is warranted.”); Davis v. O’Brien,

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Related

State v. Walker
258 P.3d 1228 (Oregon Supreme Court, 2011)
State v. Wyatt
15 P.3d 22 (Oregon Supreme Court, 2000)
Ailes v. Portland Meadows, Inc.
823 P.2d 956 (Oregon Supreme Court, 1991)
State v. Spencer
750 P.2d 147 (Oregon Supreme Court, 1988)
Davis v. O'BRIEN
891 P.2d 1307 (Oregon Supreme Court, 1995)
State v. Jones
174 P.3d 1037 (Court of Appeals of Oregon, 2007)
Staglin v. Driver & Motor Vehicle Services Division
205 P.3d 90 (Court of Appeals of Oregon, 2009)
Staglin v. Driver and Motor Vehicle Services Div.
213 P.3d 578 (Oregon Supreme Court, 2009)
State v. Hunt
200 P.3d 165 (Court of Appeals of Oregon, 2008)
State v. Matviyenko
157 P.3d 268 (Court of Appeals of Oregon, 2007)
State v. Pickle
288 P.3d 1039 (Court of Appeals of Oregon, 2012)
State v. Whitmore
307 P.3d 552 (Court of Appeals of Oregon, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
326 P.3d 1285, 263 Or. App. 46, 2014 Ore. App. LEXIS 677, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hernandez-orctapp-2014.