The state took the position, however, that suppressing the officer’s questions and defendant’s answers was sufficient to vindicate that right. The Court of Appeals agreed and also observed that asking defendant for consent to take a breath test did not constitute prohibited "interrogation" under Article I, section 12. State v. Swan , 276 Or. App. 192, 366 P.3d 802 (2016). We allowed defendant’s petition for review to consider those issues and now reverse the Court of Appeals decision and the trial court’s judgment.
Defendant later filed a supplemental memorandum in support of his motion to suppress, alerting the court that the Oregon Supreme Court had accepted review of State v. Koch , 289 Or. App. 642, 412 P.3d 1216 (2017) ( Koch I ), rev dismissed as improvidently allowed , 365 Or. 658, 451 P.3d 1016 (2019) ( Koch II ), to resolve whether a request to take a breath test constitutes interrogation under Article I, section 12. In Koch I , which we affirmed without opinion, the defendant had argued in relevant part that State v. Swan , 276 Or. App. 192, 201, 366 P.3d 802 (2016)( Swan I ) , rev'd on other grounds , 363 Or. 121, 420 P.3d 9 (2018)( Swan II ) , where we held that asking a suspect to take a breath test does not constitute interrogation under Article I, section 12, was wrongly decided. Defendant here attached to his supplemental memorandum, as legal support, the defendant's brief that was filed in Koch I .
The trial court found it "significant" that Downey read and then reread defendant the implied consent form to ensure that "she understood what * * * was involved in refusing or taking the breath test" in reaching its conclusion that defendant’s consent to take the breath test was not derived from the Miranda violation. In our opinion in State v . Swan , 276 Or. App. 192, 204-06, 366 P.3d 802 (2016), rev'd , 363 Or. 121, 420 P.3d 9 (2018), we, like the trial court in this case, found it "significant" that the officer had provided the "defendant with the implied consent information necessary to make an informed choice concerning the breath test at two different times," and concluded that the implied consent warnings were a subsequent event that intervened to break the causal chain between the violation and the later obtained breath test results. The Supreme Court reversed our decision in Swan , noting that, although it has held that implied consent warnings, which advise a defendant of the consequences of refusing to take a breath test, do not render a defendant’s consent involuntary, that question differs from the question of whether that "advice was sufficient to break the causal chain between the violation and [a] defendant’s decision to take the breath test."