State v. Stone , 229 Or. App. 708 ( 2009 )

214 P.3d 824 (2009) 229 Or. App. 708

STATE of Oregon, Plaintiff-Respondent,
v.
Brian Keith STONE, Defendant-Appellant.

072420FE; A137540.

Court of Appeals of Oregon.

Submitted on June 5, 2009. Decided July 15, 2009.

Peter Gartlan, Chief Defender, Appellate Division, and Meredith Allen, Senior Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

John R. Kroger, Attorney General, Jerome Lidz, Solicitor General, and Susan G. Howe, Senior Assistant Attorney General, filed the brief for respondent.

Before EDMONDS, Presiding Judge, and WOLLHEIM, Judge, and SERCOMBE, Judge.

PER CURIAM.

Defendant was convicted of one count of driving under the influence of intoxicants (DUII), ORS 813.010. On appeal, he argues that the trial court erred in denying his motion to suppress evidence of his refusal to take a breath test. According to defendant, the police denied him a reasonable opportunity to consult privately with counsel before deciding whether to submit to the test, thereby violating his rights under Article I, section 11, of the Oregon Constitution. State v. Durbin, 335 Or. 183, 193-94, 63 P.3d 576 (2003) ("[A] driver arrested for DUII has, upon invoking the right to counsel, the right to a reasonable opportunity to consult privately with counsel before deciding whether to submit to a breath test."). The state concedes the point and acknowledges that the trial court's error requires reversal. We agree and accept the state's concession. State v. Sawyer, 221 Or.App. 350, 354-55, 190 P.3d 409 (2008); State v. Matviyenko, 212 Or.App. 125, 127-30, 157 P.3d 268 (2007).

Reversed and remanded.