State v. Beeson

                                       808

 Argued and submitted October 15, 2019, affirmed December 9, on appellant’s
petition for reconsideration filed December 23, 2020, reconsideration allowed by
                              opinion March 10, 2021
                     See 

, 

 (2021)


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                  HARRY CREIGHTON BEESON,
                      Defendant-Appellant.
                   Curry County Circuit Court
                      17CR12539; A166382
                                   

     Defendant appeals a judgment of conviction for driving under the influence
of intoxicants, ORS 813.010, and recklessly endangering another person, ORS
163.195. He assigns error to the trial court’s denial of his motion to suppress evidence of his blood alcohol content (BAC), which an officer obtained after defendant
submitted to a breath test. On appeal, defendant argues that admitting the BAC
results violated his Article I, section 12, rights under the Oregon Constitution.
In particular, he argues that his consent to the breath test was the product of an
earlier Miranda violation. The state concedes the earlier violation but counters
that it did not taint defendant’s later decision to take the breath test. Held: The
trial court did not err by denying defendant’s motion to suppress. Given the totality of the circumstances, the Miranda violation did not taint defendant’s decision
to submit to the breath test. The admission of the BAC evidence therefore did not
violate defendant’s Article I, section 12, rights.
    Affirmed.


    Cynthia Lynnae Beaman, Judge.
   Mark Kimbrell, Deputy Public Defender, argued the
cause for appellant. Also on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Joanna L. Jenkins, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before DeHoog, Presiding Judge, and Egan, Chief Judge,
and Mooney, Judge.*
______________
    * Egan, C. J., vice Hadlock, J. pro tempore.
Cite as 

 (2020)   809

  MOONEY, J.
  Affirmed.
810                                           State v. Beeson

        MOONEY, J.
         Police officers stopped defendant after it was
reported that he had hit someone with his truck and that
he was intoxicated. The state concedes that the officers violated defendant’s state constitutional rights when, after the
circumstances became compelling, they administered field
sobriety tests (FSTs) to him and continued to ask him questions without advising him of his Miranda rights. The trial
court suppressed the statements and FSTs but received into
evidence the results of the blood-alcohol (BAC) test to which
defendant consented after the violation. Defendant was convicted of driving under the influence of intoxicants, ORS
813.010, and recklessly endangering another person, ORS
163.195, after a bench trial. He assigns error to the trial
court’s denial of his motion to suppress the results of his
breath test. Defendant argues that the Miranda violation
tainted his consent to the breath alcohol test and that the
results should, therefore, be suppressed. For the reasons we
explain below, we conclude that the breath test was not the
product of the Miranda violation and that the trial court did
not err in denying the motion to suppress the test results.
We affirm the judgment.
               I. STANDARD OF REVIEW
         We review the denial of defendant’s motion to suppress for legal error. State v. Heise-Fay, 

, 

 (2015). We are bound by the trial court’s
express and implicit factual findings, so long as evidence in
the record supports them. State v. Ehly, 

, 

 (1993). “If findings of historical fact are not made on
all pertinent issues and there is evidence from which such
facts could be decided more than one way, we will presume
that the facts were decided in a manner consistent with the
court’s ultimate conclusion.” 

 We state the facts consistently with our standard of review.
              II. FACTUAL BACKGROUND
        Defendant and T (the victim in this case) were
familiar with each other on the day in question because they
shared a remote family connection and because defendant’s
former girlfriend lived in a room in T’s mother’s home. While
Cite as 

 (2020)                                  811

T’s mother was giving T a ride across town, T noticed defendant following them. They stopped and there was a brief
exchange during which T told defendant to “please turn
around. Please go home.” When defendant did not respond,
T said that he was going to call 9-1-1, which he immediately did. T walked back to his mother’s car and, while he
was providing 9-1-1 with a description of the vehicles, defendant “lunged his truck forward” striking T. T told the 9-1-1
operator that defendant “just hit me, he just hit me.” After
hitting T, defendant backed up, turned around, and drove
away.
         At approximately 5:00 p.m., Oregon State Police
Trooper Katter heard the county dispatcher announce that
there had just been a hit-and-run involving a potentially
impaired driver. Katter began to search for the vehicle and,
when she located it, activated her overhead lights and followed it. Defendant drove away from Katter, jumping the
curb with his right rear tire as he turned onto Highway 101.
He pulled into a nearby grocery store parking lot but did
not immediately stop his vehicle. Katter then activated her
siren, and defendant stopped circling and parked in front of
the grocery store.
        Defendant opened the door to his truck as Katter
approached it. She smelled a “strong[ ] odor” of an alcoholic
beverage emanating from defendant that remained strong
throughout the contact. Katter noticed that defendant
was “completely covered in mud” on his left side—from his
“elbow down to his feet.” His movements and speech were
“sluggish,” and his eyes were “glassy and bloodshot.” When
she asked to see his driver’s license, defendant struggled for
“about two and a half minutes to get it … out of his pants
and hand it to” her. During this period of time, defendant
and Katter had the following exchange:
       “[KATTER]: Well, sir, I can smell that you’ve been
   drinking. You’re telling me that you haven’t, but I can smell
   it. So how much have you had to drink today?
      “[DEFENDANT]: I don’t drink.
      “[KATTER]: So are you on any medication?
      “[DEFENDANT]: Yes, ma’am. A lot of them.
812                                              State v. Beeson

     “[KATTER]: Okay. What—what kind of medication
  are you taking?
      “[DEFENDANT]: They’re for my heart.
      “[KATTER]: Is it Atenolol?
      “[DEFENDANT]: There’s a lot of medication.”
        At that point, defendant produced his driver’s
license and Katter asked him for insurance and registration. Their discussion continued:
     “[KATTER]: So if—so if you haven’t had anything to
  drink but you’re taking medications, what kind of medications are you on?
      “[DEFENDANT]: It’s for my heart.
      “[KATTER]: Are you taking any pain medication?
      “[DEFENDANT]:       No?
      “[KATTER]: No. Okay. All right. Well, just give me a
  few minutes. Sir, would you be willing to consent to some
  field sobriety tests?
      “[DEFENDANT]: Why?
      “[KATTER]: Why? Because I believe that you’re
  impaired right now and shouldn’t be driving, so I’d like—
  I’d like for you to be able to prove to me that you are indeed
  able to drive, so that’s why I’m asking if you want to consent to field sobriety tests.
     “[DEFENDANT]: Well, I’d be more than happy to, but
  you’ve got to know I can’t even put my underpants on in the
  morning, underpants.
     “[KATTER]: Well, then do you think you should be
  driving if you can’t even put your underpants on? Can you
  be operating a motor vehicle on the highway? It’s a reasonable question.
      “[DEFENDANT]: It probably is, yeah.
      “[KATTER]: So you’d be willing to consent to the tests?
  It’s a simple yes or no.
     “[DEFENDANT]: Yes or no. I’d be more than happy to
  take your test.
Cite as 

 (2020)                                 813

       “[KATTER]: Okay. Then just give me a few minutes,
   sir. I’m going to run this, and I’ll be right back with you,
   and then we’ll do those tests, okay? [Deputy Hanson is]
   going to hang out with you.”

        Deputy Hanson arrived while defendant was working to retrieve his driver’s license. Hanson opened the
passenger-side door of the truck and asked, “How are you?,”
to which defendant responded, “Good. How are you?” Katter
continued with defendant:
      “[KATTER]: Did you fall down in the mud? It looks
   like you—

       “[DEFENDANT]: No. I was picking flowers for my
   girlfriend.

      “[KATTER]: You were picking flowers?

      “[DEFENDANT]:       Yeah.

      “[KATTER]: That’s—it looks like muddy work.

      “[DEFENDANT]: No, I did, too. I can take you back to
   show them to you.”

Katter then asked defendant for his car keys, and, when
defendant asked why, Katter told him, “[b]ecause you’re not
going anywhere.”
          T arrived on the scene shortly thereafter, and defendant exited his truck in an effort to confront him. A third
officer, Hodencamp, also arrived on the scene at that time.
Hanson told defendant to return to his truck, but, when
defendant did not comply, Hanson physically restrained
defendant and instructed him to place his arms behind his
back until he could calm back down. Katter told defendant to
“relax,” and defendant returned to his truck without further
restraints. She asked him whether he was ready to take field
sobriety tests (FSTs), and he responded that he was—after
first denying that he had consumed alcohol and telling her
again that he was taking medication. Defendant performed
the requested FSTs, after which Katter told Hodencamp
that she was going to arrest defendant for driving under the
influence of intoxicants (DUII).
814                                             State v. Beeson

         Hodencamp then began asking defendant questions
related to the hit-and-run without providing defendant with
Miranda warnings. After several minutes of questioning,
Hodencamp and defendant had the following exchange:
     “[HODENCAMP]: Alright. Is there anything else
  that you want to tell me right now that you can think of?
  Anything that would make it easier for you? Help you out?
      “[DEFENDANT]: I got nothing else to say.
      “[HODENCAMP]:      OK. We’re all done.”
        [Defendant starts to say something]
     “[HODENCAMP]: OK. I’m going to stop you right
  there. I’m going to read you your rights, OK.
     “[HODENCAMP, speaking to Katter]:          Have you read
  him his rights yet?
      “[KATTER]: Not yet.
     “[HODENCAMP]:       I’m going to read you your rights
  real quick, OK?
     “[DEFENDANT]: I’m getting arrested for this drug
  addict, mother fucker—
     “[HODENCAMP]: OK, listen up now. You told me that
  you don’t want to say nothing else, so I’m going to stop you
  there, and I’m going to read you your rights, OK.”
Hodencamp then read defendant the Miranda warnings,
after which the exchange continued:
      “[HODENCAMP]:      Do you understand those rights?
      “[DEFENDANT]: Yes sir.
    “[HODENCAMP]: Alright. You are under arrest for
  DUII, and there might be additional charges.”
         Hodencamp arrested defendant at 5:25 p.m.,
approximately 30 minutes after Katter initially responded
to the report from dispatch. Hodencamp drove defendant to
the police station, where Katter resumed her DUII investigation. Katter read defendant his rights related to implied
consent, after which defendant signed the implied consent
Cite as 

 (2020)                             815

form. Katter observed defendant for the required 15 minutes, at which point she administered the breath test, which
yielded a blood-alcohol content (BAC) of .21 percent.

              III.   PROCEDURAL HISTORY

         Defendant filed a pretrial motion to suppress, seeking to exclude evidence of statements he had made to the
police, police observations of defendant, physical evidence,
breath test results, and “all evidence, the source of which,
comes from any contact with [defendant] either at the vehicle or thereafter by any police officer … or [I]ntoxilyzer
testing.” Defendant argued that his rights under the Fifth
Amendment of the United States Constitution and Article I,
section 12, of the Oregon Constitution had been violated
because he was questioned without first being advised of
his Miranda rights at a time when he was in “constructive custody.” Constructive custody, he argued, arose at the
point when “all three officers were directing him what to
do and where to go and prevented him from moving freely.”
Defendant further argued that, although Hodencamp
advised him of his Miranda rights at the time of his formal arrest, and before his submission to the breath test, his
consent to take the breath test was tainted by the earlier
Miranda violation. Thus, defendant argued that the breath
test evidence should be suppressed as well.

          The state conceded that there were compelling circumstances requiring Miranda warnings once Katter and
Hanson went “hands-on” with defendant in order to stop
him from confronting the victim of the hit and run. The
state therefore agreed that defendant’s statements after
that point and the results of the FSTs should be suppressed,
but it opposed the suppression of the breath test evidence,
arguing that, under State v. Chambers, 

, 

 (1997), rev den, 

 (1998), the Miranda violation did not taint defendant’s subsequent consent to the
breath test. It specifically argued that defendant’s consent
was not causally related to the Miranda violation because
(1) the officers could have arrested defendant for DUII without first conducting FSTs (i.e., they had probable cause for
DUII without the FSTs and without defendant’s unwarned
816                                                         State v. Beeson

statements), (2) he was advised of his rights when he was
arrested, and (3) his subsequent consent to the breath test
was voluntary under ORS 813.100.1
         Alternatively, the state argued that intervening
events dissipated the taint of the Miranda violation, rendering the consent voluntary and the resulting test results
admissible. Defendant responded that, because the Miranda
violation was so close in time to the breath test, the test
result should be excluded as a product of the Miranda violation, along with his statements and his performance on the
FSTs. And, again, the state agreed that the FST evidence
and pre-Miranda statements were not admissible.
         The trial court accepted the state’s concession and,
accordingly, granted the motion to suppress defendant’s
post-violation statements and the FST results, but it denied
defendant’s motion to the extent it sought to suppress the
breath test results. The court found, among other things,
that Katter had probable cause to arrest defendant for DUII
upon her initial contact with him in the parking lot, that
defendant provided consent to take FSTs “prior to any compelling circumstances,” that defendant himself created the
“compelling circumstances” by exiting his vehicle to confront the victim, and that the officers’ reaction to defendant’s
“attempt to confront the victim in an aggressive manner”
was “reasonable.” It agreed with each of the state’s alternative grounds for admitting the breath test results—the
“independent source doctrine”2 and the “attenuation doctrine”3 —finding that
     1
       ORS 813.100 provides that “[a]ny person who operates a motor vehicle upon
premises open to the public or the highways of this state shall be deemed to
have given consent, subject to the implied consent law, to a chemical test of the
person’s breath,” and that the consequences of refusing to do so includes the suspension of driving privileges.
     2
       “The independent source doctrine permits the introduction of evidence initially discovered during, or as a consequence of,” unlawful state activity, “but
later obtained independently from activities untainted by the initial illegality.”
State v. Johnson, 

, 

 (2003) (internal quotation marks
and citations omitted).
     3
       The attenuation doctrine permits the introduction of evidence obtained
after illegal state activity, so long as the state can prove that it obtained the
evidence after the taint of the illegality had dissipated, demonstrating that the
evidence was not derived from the illegality. State v. Delong, 

,

 (2015).
Cite as 

 (2020)                                   817

       “[i]t was a relatively short period of time between
   [Katter’s] encounter with the defendant in the … parking
   lot … and at the jail. However, there were some things
   that occurred prior to the breath test and in between the
   compelling circumstances and the lack of Miranda warnings and the time the breath test was provided, those
   things including the defendant being taken to another location, so it was not the same location. It included that his
   Miranda warnings—or the Miranda warnings were provided to him, and it included reading the Implied Consent
   Form [pursuant to ORS 813.100].
      “The court will find that if the defendant had not agreed
   to take the field sobriety tests, the trooper would have
   taken—would have arrested him and taken him to the jail
   to go through the Implied Consent Form and to request
   that he take a breath test. The court will conclude that
   the test—the State would have requested the breath test
   regardless of the Miranda violation.
       “Furthermore, the court will find that under the totality
   of the circumstances the State did not exploit any unlawful interrogation or violation of Miranda warning rights
   in order to obtain the breath test, so the defense’s position
   fails on both the but for tests and then under totality of the
   circumstances and with a view towards the nature of the
   causal connection between the violation of rights and the
   later obtained breath test.
      “…
      “The breath test evidence doesn’t derive from any
   unlawful activity from the State.”
        Defendant waived his right to a trial by jury. During
his bench trial, among other things, the state introduced
evidence of defendant’s BAC. The court found defendant
guilty on two counts—DUII, ORS 813.010, and recklessly
endangering another person—ORS 163.195, but acquitted
him of reckless driving, ORS 811.140, and entered a judgment accordingly. Defendant now appeals that judgment,
assigning error to the trial court’s denial of his motion to
suppress.
                        IV. ANALYSIS
         On appeal, defendant limits his argument to the
court’s refusal to suppress the evidence of the results of
818                                          State v. Beeson

his breath test under Article I, section 12. He argues that
there are two related reasons why the breath test results
should have been suppressed. First, he argues that he was
in “constructive custody” earlier in the encounter than
the point at which the state conceded that a Miranda violation occurred (i.e., the point at which the officers went
“hands on” with defendant). Because the police did not supply Miranda warnings at that earlier point, he argues, the
“police-dominated” atmosphere, combined with the lack of
Miranda warnings, rendered his consent to the breath test
involuntary. Second, and relatedly, he argues that, although
the officers provided belated Miranda warnings, the state
failed to demonstrate that those warnings dissipated the
taint of the earlier Miranda violation, also rendering his
consent to take the breath test an involuntary product of the
violation.

          Before turning directly to the question presented,
we must address a preliminary issue. The state argues that
defendant invited error with regard to his first argument—
that the police-dominated atmosphere required the provision of Miranda warnings earlier in the encounter than
the state concedes. See State v. Kammeyer, 

, 

, rev den, 

 (2009) (“Under the
invited error doctrine, a party who ‘was actively instrumental in bringing about’ an alleged error ‘cannot be heard to
complain, and the case ought not to be reversed because of
it.’ ” (Quoting Anderson v. Oregon Railroad Co., 

, 

 (1904).)).

         As the state observes, defendant did not argue
before the trial court that he was in constructive custody
any earlier than the time at which the state conceded that
a Miranda violation occurred. Rather, in his motion to suppress, he argued that circumstances became “compelling”
when “all three officers were directing him what to do and
where to go and prevented him from moving freely in any
manner including taking steps to physically touch the
Defendant and direct him to places they wanted him to go.”
Defendant argued that “[t]he violation then is during the
field sobriety test, which is just before the arrest[.]” Thus,
whether or not defendant invited any error regarding the
Cite as 

 (2020)                                  819

timing of the Miranda violation, he certainly did not preserve
an argument that he was in constructive custody before the
encounter became “hands on.” Accordingly, we will not consider that argument on appeal. See ORAP 5.45(1); State v.
Wyatt, 

, 

 (2000) (“[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.”). Therefore, for our purposes, defendant was
in custody when the state concedes that he was—when the
officers went “hands on” with him. Miranda warnings were
required at that point.
         We turn now to the question presented: whether
defendant’s consent to submit to the breath test was the product of that Miranda violation. We must determine whether
the consent to the breath test “derived from [the officers’]
violation of defendant’s Article I, section 12, rights.” State v.
Taylor, 

, 

 (2019) (emphasis
added). That determination “cannot be reduced to a mechanical formula.” State v. Swan, 

, 

 (2018).
It instead requires a totality-of-the-circumstances analysis,
and the state bears the burden to prove that defendant’s
consent “broke the causal chain between the prior Article I,
section 12, violation and his breath test results.” 

 Among
other things, the fact-specific analysis may include consideration of
   “the nature of the violation, the amount of time between
   the violation and any later statements, whether the suspect
   remained in custody before making any later statements,
   subsequent events that may have dissipated the taint of
   the earlier violation, and the use that the state has made of
   the unwarned statements.”
State v. Jarnagin, 

, 

 (2012).
         In Jarnagin, officers began investigating the defendant after his child was admitted to the hospital with injuries consistent with possible abuse. During the course of the
investigation, officers spoke with the defendant at the hospital and at the police station, where he provided an explanation for how his child was injured. 

. The next
820                                                          State v. Beeson

day, the police went to the defendant’s home, where he reenacted for them the same version of events that he had recited
at the police station the day before. 

. After that, he
agreed to accompany them to another police station to take a
polygraph examination. He went to the station two to three
hours later, where he was advised of his Miranda rights for
the first time. He then submitted to the polygraph examination, during which he changed his explanation of how his
child was injured. 

. The defendant was charged
with a number of crimes, including murder by abuse. He
moved to suppress the statements he made over the course
of the two-day investigation, arguing that, because he had
not been given Miranda warnings until the time of the polygraph examination, all of his statements—made before and
after he was Mirandized—were inadmissible. 

. The
trial court granted the defendant’s motion to suppress as to
all but a few statements made just prior to administration
of the polygraph examination. 

         On review, the Supreme Court first concluded that,
because circumstances were “compelling” both at the hospital and at the police station, Miranda warnings were
required before the officers spoke with the defendant at
those locations. 

. And, because “the video reenactment was a product of the Miranda violation the day before,”
the court also concluded that the defendant’s statements at
his home were properly suppressed. 

 The court concluded,
however, that the officers’ post-violation Miranda warnings
effectively dissipated the taint of the earlier violations and
allowed for the admission into evidence of statements made
during the polygraph examination. 

.
        Comparing Missouri v. Seibert, 

, 

, 

 (2004), to Oregon v. Elstad, 

, 

, 

 (1985),4 the Jarnagin
    4
      In Elstad, the officers arrested the defendant in his house, but, before providing him with Miranda warnings, asked whether he was involved in a burglary.

. The defendant admitted to being present at the burglary, after
which the officers took him to the police station and Mirandized him. After that,
he agreed to speak with the officers and provided a full statement admitting that
he was involved in the burglary. 

. The Supreme Court held that the
late Miranda warnings were sufficient to ensure that the defendant adequately
waived his Fifth Amendment rights because the officers’ lack of “coercion” indicated that the defendant’s waiver was voluntary. 

.
Cite as 

 (2020)                                   821

court reiterated its adoption of the Seibert plurality opinion
in an earlier case:
       “ ‘The problem that Seibert demonstrates … is that
   when the police question first and warn later, their exhibition and exercise of authority and violation of the defendant’s constitutional rights may communicate to a defendant, as the Court believed they did in that case, that, before
   the defendant will be released, he or she must answer the
   questions asked. In that circumstance, the police not only
   fail to provide the defendant with the information necessary to a valid waiver—that the defendant has a right to
   remain silent and to confer with an attorney—the police
   also convey a contrary message. In that situation, when
   the police later administer Miranda warnings, we cannot
   assume that the mere recitation of Miranda warnings is
   sufficient to serve the intended informative function.
      “ ‘That being said, we note that Seibert is at one end of
   the range of the factual circumstances that present the
   issue that we address. [Elstad] is at the other. Not every
   instance in which the police question first and warn later
   communicates a mixed message.’ ”
Jarnagin, 

 (quoting State v. Vondehn, 

, 

 (2010) (alteration added)). The court
distinguished the case before it from Seibert and concluded
that “[t]he polygraph examination that occasioned defendant’s waiver of his Miranda rights presented ‘a markedly
different experience’ from the officers’ questioning the day
before and the video reenactment earlier that day.” 

 at
723 (citing Seibert, 

). The court held that the
post-violation Miranda warnings were effective at dissipating the taint of the earlier, nonflagrant violation with
respect to the defendant’s consent to take the polygraph
examination. 

        The court reached a different conclusion in Swan.
There, the defendant performed poorly on FSTs, was arrested
for DUII, and was taken to the police station. 

. After being advised of his Miranda rights, the defendant asked to speak with his lawyer, with whom he then
spoke at length from a jail cell. After that, the officer asked
the defendant nearly 30 questions from an implied consent
form, read him his rights concerning implied consent, and
822                                          State v. Beeson

requested a breath test. The defendant initially declined to
consent to the breath test, again invoking his right to counsel, but later acquiesced to the breath test, which returned a
.18 percent BAC. 

 The defendant moved unsuccessfully to
suppress the answers to the questions as well as the breath
test results, and he was convicted of DUII. 

. The
state conceded that the answers to the interview questions
should have been suppressed but argued that the breath
test results did not derive from the impermissible questions
and were, therefore, properly admitted into evidence. 

The Supreme Court ultimately concluded that the defendant’s consent to the breath test was the product of “flagrant
and repeated” Miranda violations. The defendant’s “decision
to take the breath test was the product of the immediately
preceding Miranda violation” because “no time elapsed
between the questions that [the officer] asked in violation
of defendant’s right to counsel and his question whether
defendant would take a breath test,” and because the “defendant remained in custody throughout that time.” 

.

         Whether the violation of defendant’s Article I, section 12, rights in this case tainted his consent to the breath
test is a close call. On the one hand, defendant remained
in custody from the time of the violation through the time
of the breath test over a time period lasting less than an
hour, tending to favor suppression. On the other hand, the
violation and breath tests occurred in different locations,
defendant was advised of his rights before he consented to
the breath test, and the violation itself was not flagrant,
tending to disfavor suppression. As we explain below, the
record supports the trial court’s determination that defendant’s consent to the breath alcohol test was not tainted by
the Miranda violation and, therefore, we conclude that the
court did not err in denying defendant’s motion to suppress
the results of that test.

A.    Whether Defendant Remained in Custody Before Making
      Any Later Statements

       Defendant was placed in custody shortly after the circumstances became compelling, and he remained in custody
Cite as 

 (2020)                            823

until he submitted to the breath test. Because there was
no break in custody between the officer’s Miranda violation and defendant’s consent to take the breath test, this
weighs in favor of suppression. See id. at 132 (“[T]here was
no break in … custody between the officer’s repeated
Article I, section 12, violation and defendant’s decision to
take the breath test that might have attenuated the effect
of the violation.”); State v. Koch, 

, 

 (2014) (concluding that “the circumstances … militate … in favor of suppression” because the “defendant
was under compelling circumstances within 15 minutes of
the initial encounter and was under arrest when he gave
the urine sample”); Taylor, 

 (“Because
defendant was under compelling circumstances within
20 minutes of the initial encounter when she was placed
under arrest, and there was no break in custody before
[the officer] asked defendant to take a breath test, the third
Jarnagin factor also militates in favor of suppression.”).

B. Amount of Time Between the Violation and the Breath
   Test

         Approximately 35 to 40 minutes elapsed between
the Miranda violation and defendant’s consent to take the
breath test. The short time frame, involving no real break,
also weighs in favor of suppression. See Swan, 

 (concluding that “the prior illegality and the defendant’s
decision to take the breath test blended into a continuum”
because “there was no break in time, place, or custody
between the officer’s repeated Article I, section 12, violation and defendant’s decision to take the breath test that
might have attenuated the effect of the violation” (internal
quotation marks and citation omitted)); State v. McAnulty,

, 

 (2014) (suppressing statements obtained “immediately after” a Miranda violation);
Taylor, 296 Or at 291 (concluding that a breath test taken
15 minutes after a Miranda violation suggested that the
defendant’s decision to submit to the test was tainted by the
Miranda violation). But see State v. Ward, 

,

 (2020) (“[A] short delay and change of location,
alone, will generally not preclude the state from proving a
valid waiver.”).
824                                           State v. Beeson

C. Nature of the Violation

         The conceded Miranda violation in the case before
us, unlike the violation in Swan, was not egregious or flagrant. Here, the officers did not disregard defendant’s invocation of his constitutional rights. They did not ask him multiple questions in the face of repeated requests for counsel.
See Koch, 

 (concluding that the violation
was “flagrant” where the officer subjected the defendant
to custodial interrogation by “repeatedly” questioning him
after he had invoked his right to counsel). The violation here
occurred when the officers administered FSTs to defendant
for about 15 minutes and asked him questions related to
the hit-and-run without first advising him of his Miranda
rights. The context immediately preceding the violation was
at least confusing, if not momentarily chaotic, given that the
victim had arrived on the scene, apparently triggering defendant’s unexpected jump from his truck and his attempt to
confront the victim. The officers reacted quickly to restrain
defendant, but handcuffs were not used, and the officers
and defendant remained fairly relaxed. As the state concedes, the circumstances became compelling at that point
and the officers should have advised defendant of his rights
before proceeding. This was not, however, an intentional or
flagrant violation. Instead, it appears that the officers did
not immediately recognize that the encounter had reached
a constitutionally significant point.

         We are mindful that the Supreme Court recently
cautioned us to limit our conclusion that a Miranda violation is “not especially flagrant,” suggesting such a finding
“should be limited to violations that consist of ‘the officers
fail[ing] to recognize that the circumstances had become
sufficiently compelling to require Miranda warnings.’ ”
Ward, 

 n 9 (quoting Swan, 

 (alterations in Ward)). The court’s conclusion in Ward reinforces
the trial court’s finding, here, that the violation was neither
flagrant nor egregious because the officers simply failed to
recognize that the situation had become compelling. They
did not deliberately violate defendant’s rights. The nature
of the violation here was not egregious, weighing against
suppression.
Cite as 

 (2020)                             825

D. Subsequent Events that May Have Dissipated the Taint
   of the Earlier Violation
         Three significant events occurred between the
Miranda violation and the consent for breath test that
weigh against suppression: (1) Hodencamp read defendant
his Miranda rights and, while doing so, prevented defendant
from interrupting so that he could finish the Miranda warnings and obtain defendant’s acknowledgment that he understood the warnings; (2) the officers transported defendant
to another location, the police station; and (3) Katter read
defendant the implied consent form, which includes rights
and consequences, before he consented to the breath alcohol
test. Katter testified that she read the form to defendant
and followed all of the procedures required, and she did so
after contacting Hodencamp to confirm that he had advised
defendant of his Miranda rights.
          That Hodencamp read defendant his Miranda
rights is important in our analysis. The court in Jarnagin
found that an officer’s belated Miranda warnings were
“effective to purge the taint of the prior violation and ensure
a knowing and voluntary waiver of defendant’s right[s].”
Jarnagin, 

. Thus, belated Miranda warnings,
in certain contexts, can effectively cure an earlier violation.
Such later warnings are generally not sufficient to dissipate
the taint of the earlier violation when “the unwarned interrogation left ‘little, if anything, of incriminating potential
… unsaid,’ making it ‘unnatural’ not to ‘repeat at the second stage [of the interrogation] what had been said before.’ ”

 at 722 (quoting Seibert, 

 (alterations in
original)). In other words, late Miranda warnings do not
effectively dissipate the taint of an earlier violation when
officers “communicate[ ] a mixed message” to the defendant
by “question[ing] first and warn[ing] later.” Vondehn, 

. That is because the defendant would feel pressured
to repeat what he or she had said during the unwarned
interrogation. Seibert, 

.
         Here, the post-violation events illustrate an even
cleaner break in the investigation than occurred in Jarnagin.
Unlike the defendant in Jarnagin, who was taken to the
police station for a long polygraph examination after two
826                                          State v. Beeson

days of off-and-on questioning, the defendant here was
taken to the police station and subjected to a single breath
test. As the court stated in Jarnagin, this is “not a case,
as in Seibert, where the unwarned interrogation left ‘little,
if anything, of incriminating potential … unsaid,’ making it ‘unnatural’ not to ‘repeat at the second stage [of the
interrogation] what had been said before.’ ” 

(quoting Seibert, 

 (alterations in original)).
And “unlike in Seibert, there is no concern here that police
gave [defendant] Miranda warnings and then led him to
repeat an earlier … confession, because there was no earlier confession to repeat.” Bobby v. Dixon, 

, 

, 

 (2011) (emphasis added). Instead,
Hodencamp’s pre-Miranda questions about the hit-and-run
were limited to the facts of the hit-and-run. And, defendant
consistently denied alcohol consumption throughout the
investigation, including after the FSTs. He maintained that
his behavior was due to a medical condition and his related
medications—not alcohol consumption.

          Defendant argues that the belated Miranda warnings did not dissipate the taint of the violation because “the
officers’ behavior immediately leading to their administration of Miranda warnings communicated to defendant that,
despite the contents of the warnings … the police could
question him at will and seek his consent to perform tests
that illuminated his intoxication, as they had already done.”
We disagree for two reasons. First, because defendant consented to the FSTs before the Miranda violation occurred,
that consent was not connected to the subsequent violation.
Moreover, defendant continued to deny that he had been
drinking. That tends to detract from the argument that he
later consented to the breath test because he perceived that,
given the violation and subsequent conduct of the officers,
withholding consent would be futile.

        Second, Hodencamp did not permit defendant to
interrupt or make any statements while he read him his
Miranda rights. The officers did not “question first and
warn later,” and they did not communicate that, “before the
defendant will be released, he … must answer the questions asked.” Vondehn, 

. The police already
Cite as 

 (2020)                             827

had probable cause to arrest defendant for DUII before
the Miranda violation. They learned almost no new information between the time of the violation and the giving of
the Miranda warnings, and Hodencamp clearly communicated to defendant that he had the right to remain silent
and that he should, in fact, exercise it. The officers’ conduct
did not diminish the importance of the Miranda warnings.
The manner in which defendant was advised of his rights
highlighted the importance of those rights. See Jarnagin,

 (highlighting the importance of an officer’s
explanation of Miranda warnings in the totality of the circumstances analysis).
         Defendant also argues that the Miranda warnings were ineffective because the pre-Miranda FSTs and
inquiry, together with defendant’s post-Miranda consent to
a breath test, created “a continuous and fluid police operation.” Heise-Fay, 

. It is true that merely
providing Miranda warnings is not sufficient alone to cure
a Miranda violation. Post-violation warnings are generally
ineffective when they are a mere formality that blends two
phases of questioning into a “continuum.” See 

 (concluding that questioning blended into a “continuum,” rendering the post-Miranda statements inadmissible, when one
officer asked the defendant “detailed and probing questions” over a relatively short period of time before finally
providing Miranda warnings). Here, however, the officers’
pre- and post-Miranda conduct did not blend into one “continuum.” Again, the officers did not ask defendant a series
of detailed questions before or after the Miranda warnings.
And the context in which defendant consented to the breath
test was a “markedly different experience” from the one in
which he performed FSTs in the parking lot and responded
to questions limited to the hit and run. See Elstad, 

. Despite the short period of time in which the entire
interaction occurred, there was a clear change of circumstances that provided a break in the investigation sufficient
to remove the taint of the violation that occurred in the field
from the consent to breath test that occurred later at the station. See Swan, 

 (highlighting the importance
of a “break in time, place, [and] custody” in the Jarnagin
analysis (emphasis added)).
828                                                          State v. Beeson

E. The State’s Use of the Unwarned Statements
         Finally, the record indicates that the state did not
use defendant’s post-violation statements to induce him to
submit to the breath test. That also weighs against suppression. Unlike in State v. Mast, 

, 

 (2020), where the defendant’s admissions “left little
of incriminating potential unsaid” beyond the defendant’s
BAC, defendant here made no post-violation statements
that would render it futile to refuse to consent to the breath
test. Rather, he maintained that he was impaired because
of his medical conditions and medications and he believed
that he was being arrested because the victim accused him
of a crime. He never admitted to drinking. Moreover, the
record demonstrates that his statements after the Miranda
violation were largely duplicative of the statements he made
before the violation. Defendant did not make admissions
which “ ‘were inextricably intertwined with [Katter’s] seeking, and obtaining,’ the breath test results.”5 Taylor, 

-96 (quoting Koch, 

).
         The totality of the circumstances reflected in the
record demonstrates that defendant’s decision to consent to
the breath alcohol test was not a product of the Miranda
violation. The trial court did not err in denying defendant’s
motion to suppress the breath alcohol test results.
           Affirmed.




    5
      Defendant also argues that, notwithstanding his lack of an admission, the
state “failed to make a sufficient record” of Hodencamp’s conversation with defendant just prior to his reading of the Miranda warnings. Although a small portion
of the audio of his conversation with Hodencamp is absent from the record, the
audible portions strongly suggest that Hodencamp restricted his investigation to
the hit-and-run and that he did not participate in the DUII investigation. And,
again, defendant believed that he was being arrested because the victim accused
him of striking him with his car. Those facts create a plausible inference that the
state did not make use of any of the information Hodencamp learned to pressure
him into taking a breath test. See Ehly, 

 (we presume that a trial
court made findings consistent with its decision, so long as evidence in the record
would support those findings).