The Defendant was convicted of DUII under Oregon law.  Defendant attempted to call his family attorney ffrom his cell phone in the back of the police vehicle before his phone was taken away by officers.  Upon arriving at the police station the Defendnat made several attempts to talk to his family attorney.  Defendant also called his mother for a referral to other attorneys. Ultimatley he was unable to reach his attorney and declined the offer to call another attorney out of the phone book.  Defendant then declined to submit to a breath test.

In pretrial motions the trial court ruled that there would be no mention of telephone calls as this was an invocation of Defendant’s right to counsel.  In her opening statement the prosecutor made mention of the cell phone call from the back of the police car.  The defense objection was overruled.  On direct examination the prosecution elicited testimony that the Defendant wanted to call his lawyer before making a decision of whhether to submit to a BAC.  The trial court sustained the resulting objection and admonished the prosecutor on the record.  Defendant was convicted of DUII.

The Oregon Court of Appeals, in State v. Veatch, 2008 WL 4724420, overturned the conviction because the prosecutors comments during opening statements had an adversely prejudicial effect on the jury.  The Defendant’s invocation of counsel is a protected statement under the Sixth Amendment to the United States Constitution and Article 1, section 11 of the Oregon State Constitution and a jury would liklely infer that a person arrested for DUII would not ask for an attorney unles he or she was concerned about failing the test.