State v. Hernandez
State v. Hernandez
Opinion of the Court
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
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 Interview 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
As we have described, defendant’s motion to suppress was based on a claim that, after invoking his right to counsel, he never waived it. Defendant’s argument was that, because he did not understand English, there were miscom-munications that caused the officers to mistakenly believe that defendant had changed his mind about talking with an attorney. The state presented evidence to rebut that claim, and the trial court found that defendant understood English and had “verbally and physically communicated that he did not want to speak with an attorney * * * ”
On appeal, however, defendant contends that the state failed to prove that he knowingly waived the Article I, section 11, “right to private consultation,” because the state did not present any evidence that the officers advised him that he would be afforded privacy once he reached an attorney. See Matviyenko, 212 Or App at 130. Defendant did not make that argument in the trial court. At the suppression hearing, defendant’s argument focused on whether he had told the officers that he no longer wanted an attorney. He never argued separately that, even if he had told the officers
Affirmed.
ORS 133.515(2) provides:
“Upon the arrest of a person with a disability and before interrogating or taking the statement of the person with a disability, the arresting peace officer * * shall make available to the person with a disability, at the earliest possible time, a qualified interpreter to assist the person with a disability throughout the interrogation or taking of a statement.”
Case-law data current through December 31, 2025. Source: CourtListener bulk data.