by Mark Wilson

The Oregon Court of Appeals held that a lower court improperly failed to suppress blood alcohol content ("BAC") evidence taken in  violation of a defendant's constitutional right to remain silent.

Oregon police received information about someone driving erratically and the wrong way, nearly causing a head-on collision. Sergeant Marl spotted a vehicle matching the reported description. He watched the driver run over a curb and park.

He then approached the vehicle and discovered the driver, Lisa Jean Taylor, who appeared to be "passed out, slumped over and wasn't moving." On closer examination, however, "she was actually trying to eat some food that she had got at Taco Bell."

The driver "slowly looked up," "had some food running down her chin" and dripping into her lap." Marl observed that her "eyes were watery, her speech was slurred," and her movements were "slow and methodical." Marl asked how much Taylor had to drink, and she replied "one drink" at home.

Officer Downey arrived and "noticed a faint odor of alcohol," that Taylor's "eyes were glassy, her face was flushed, her speech was slurred, ... that her hand and body motions were slow and sluggish, and that she was sitting behind the wheel of her vehicle and was swaying back and forth."

Taylor agreed to perform field sobriety tests, including "the horizontal gaze nystagmus test ('HGN'), part of the walk-and-turn test, and part of the one-leg stand test." Taylor told Downey she could not complete the walk-and-tum test "because she had dyslexia" and she couldn't perform the one-leg stand test "because she had dementia."

Downey asked Taylor "if she should be driving, if she had been drinking and had dementia and dyslexia." She responded "probably not." Downey arrested Taylor for DUI and advised her of her Miranda rights. He asked if she understood those rights, and she said "No."

He read them to her a second time and again asked if she understood them. Taylor again said, "No." Downey went through it again. When he asked a third time if she understood, Taylor did not respond.

She was then transported to a holding facility, and Downey began the observation period for the breath test. He interviewed Taylor using the Oregon State Police alcohol-influence interview report, designed to gather evidence for DUI investigations. 

Downey documented Taylor's responses to 28 questions, then read her the implied consent "rights and consequences" form. After each paragraph, Downey asked Taylor if she understood. When she said she did not understand a paragraph, Downey reread the paragraph until Taylor said she understood.

At the end of the observation period, Downey asked Taylor if she would submit to a breath test. She said "Yeah," and the test was  administered. Taylor's BAC was 0.29, and she was charged with DUI.

Taylor moved to suppress the field sobriety tests, her statements and the breath-test results, arguing that the evidence was a product of a Miranda violation when Downey interrogated her after she said she did not understand her rights.

The trial court agreed as to her responses to the alcohol-influence interview report but denied the motion with respect to the BAC evidence. The trial court concluded that "the taint from the Miranda violation had dissipated by the time defendant consented to a breath test." After the court ruled that the BAC evidence was admissible, Taylor entered a conditional guilty plea.

The Oregon Court of Appeals reversed, agreeing with Taylor that "the trial court should have suppressed the breath test results because the evidence derived from the exploitation uof' her constitutional right to remain silent.  See: State v. Taylor, 296 Or App 278, _ P3d _ (Or App 2019).

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