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 whether to submit to a breath test
How later courts described this case
- 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 whether to submit to a breath test
- holding that “an arrested driver has the right upon request to a reasonable opportunity to obtain legal advice before deciding whether to submit to a breath test” under Article I, section 11
- emphasizing that the right of DUII suspects “to have rea- sonable access to legal advice” was distinct from “the state’s obligation to provide an indigent suspect with an attorney at the state’s expense”
- a person taken into formal custody is confronted with the full legal power of the state, regardless of whether a formal charge has been filed, and at that time, the person is "ensnared in a 'criminal prosecution'" and has the right to counsel
Written by the judges who cited it.
The opinion
LINDE, J.,
concurring.
Justice Gillette’s majority opinion sets out the reasons that led a majority of this court in State v. Scharf, 288 Or 451 , 605 P2d 690 (1980), to hold that the state could not prosecute a defendant for driving under the influence of intoxicants with the use of evidence of breathalyzer results obtained after police officers denied the driver’s request to consult a lawyer. The reasons were that the applicable statutes left the driver a choice whether to take the breathalyzer test or to refuse to take it at the cost of losing her driver’s license, that nothing in the statute purported to authorize interference with the “long established and well-known right of any arrested person to call an attorney,” 288 Or at 460 , and that constitutional holdings could wait until the legislature attempted to permit such interference. 288 Or at 462 .
The sequels confirm rather than undermine the correctness of our original approach in Scharf . In State v. Newton, 291 Or 788 , 636 P2d 393 (1981), the plurality opinion disregarded this court’s usual rule of stare decisis for statutory interpretations, see id. at 815 (Lent, J., dissenting), and after *77 rejecting a basis for the right to call one’s lawyer in Article I, section 11, of the Oregon Constitution, embarked on a search for a federal basis in the Fourteenth Amendment. Today’s majority in turn discards that approach in favor of the state constitutional premise rejected in Newton . That premise may well be available, but it is not beyond debate, as Newton shows, and it is unnecessary.
The majority opinion makes the court’s task too difficult when it reports (305 Or at 72) that “the implied consent law, ORS 813.100 et seq, does not require that a driver be given access to counsel before submitting to a breathalyzer exam.” The question is not whether a statute “requires” that the state’s officials allow a person to call a lawyer. The legislature does not have to put that kind of thing into a statute. The question, rather, is whether anything in the statute allows the state’s officials to deny access to counsel under circumstances when practical exigencies do not stand in the way of the delay that a telephone call would represent. 1 The court found no such authority to deny access to counsel in Scharf eight years ago, and the legislature has not added it since then. I therefore concur on the grounds on which I previously dissented in State v. Newton, supra.
Peterson, C. J., and Lent, J., join in this opinion.
Cf. State v. Dimeo, 304 Or 469, 477-78 , 747 P2d 353 (1987) (denial of prisoner’s right to call lawyer invalidated use of his telephone conversation with defendant as evidence against defendant).