Opinion
CA 17445, SC 27357
Submitted on petition for review October 15, 1980.
Reversed and remanded to trial court November 3, 1981.
In Banc
On Review from the Court of Appeals.
Appeal from District Court, Washington County (No. DU-10580), Karl W. Freerksen, Judge, 48 Or. App. 223, 615 P.2d 1206 (1980)
Thomas F. Denney, Assistant Attorney General, for the petition. With him on the petition were William F. Gary, Deputy Solicitor General, John R. McCulloch, Jr., Solicitor General, and James M. Brown, Attorney General, Salem.
MEMORANDUM OPINION.
Decisions of the Court of Appeals and the trial court are reversed, and case is remanded to trial court.
MEMORANDUM OPINION.
Upon the authority of State v. Scharf, 288 Or. 451, 605 P.2d 690 (1980), the trial court allowed defendant's motion to suppress intoxilyzer evidence because defendant's request to be allowed to consult with a lawyer before submitting to the intoxilyzer test had been denied. Upon the State's appeal, the Court of Appeals affirmed per curiam, citing State v. Scharf, supra.
The State timely filed a petition for review, and we delayed action on the petition pending our disposition of State v. Newton, 291 Or. 788, 636 P.2d 393 (1981). Our decision in Newton overrules the holding of Scharf that such evidence so obtained is to be excluded.
We have, therefore, allowed the petition for review, and we now reverse the decisions of the Court of Appeals and of the trial court and remand the case for trial.
Reversed and remanded.