Opinion
A166382
03-10-2021
STATE of Oregon, Plaintiff-Respondent, v. Harry Creighton BEESON, Defendant-Appellant.
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Mark Kimbrell, Deputy Public Defender, Office of Public Defense Services, for petition.
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Mark Kimbrell, Deputy Public Defender, Office of Public Defense Services, for petition.
Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Mooney, Judge.
PER CURIAM This case is before us on defendant's petition for reconsideration of our opinion in State v. Beeson , 307 Or. App. 808, 479 P.3d 576 (2020), in which we affirmed the trial court's denial of defendant's motion to suppress the results of his breath test. Defendant contends that we misread State v. Swan , 363 Or. 121, 420 P.3d 9 (2018), and that the fact that Katter read the implied consent form to defendant weighs against, rather than in favor, of suppression. We agree that our opinion, at 307 Or. App. at 825, 479 P.3d 576, describing subsequent events that may have dissipated the taint of the earlier Miranda violation should be modified to remove Katter's reading of the implied consent form to defendant as one of those subsequent events. We reject defendant's remaining contentions and modify the first paragraph at 307 Or. App. at 825, 479 P.3d 576 to read as follows:
"Two 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; and (2) the officers transported defendant to another location, the police station."
Reconsideration allowed; former opinion modified and adhered to as modified.