State v. Lichtenberger

MEMORANDUM OPINION.

Upon the authority of State v. Scharf, 288 Or 451, 605 P2d 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 P2d 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.