State v. Lile
Case # A148884
Full Text of Opinion: http://www.publications.ojd.state.or.us/docs/A148884.pdf
Defendant Lile was arrested for DUII and Reckless Driving. At the police station, during the observation period before administration of a breath test, Lile called his attorney. Lile was informed by the attorney’s receptionist that his attorney was in court and unavailable to take his call. The arresting officer stood within earshot of Lile during the entire conversation. Lile ultimately submitted to the breath test, and his blood alcohol content was above the legal limit. Lile was charged and convicted of DUII and Reckless Driving. During trial, Lile moved to suppress the breath test results, arguing that the Officer had violated his right to counsel under Article I, section 11 by remaining within earshot during his conversation with his attorney’s office. The trial court denied the motion, and Lile now renews his argument on appeal.
The right to a reasonable opportunity to consult with counsel before deciding whether to submit to a breath test includes the inherent right to a private consultation. State v. Durbin, 335 Or 183, 190-91, 63 P3d 576 (2003). The Court of Appeals notes that if an officer remains within earshot of an arrested driver while the driver is speaking to an attorney about whether to submit to a breath test, and the driver later submits to a breath test, evidence of the test result is inadmissible. Here, the fact that Lile was speaking to his attorney’s receptionist does not lead to a different result. The Court of Appeals notes that a receptionist can, and often does, serve as a conduit of confidential communications between a client and the attorney. The trial court, therefore, erred in denying Lile’s motion to suppress the breath test result.
Furthermore, the error was not harmless. In fact, the central issue in the case was whether Lile had been intoxicated, and the jury likely used the breath test results to decide that issue. Accordingly, Lile’s conviction is reversed and remanded.