State v. Scharf

*453LINDE, J.

Convicted of driving under the influence of intoxicants (DUII), ORS 487.540, defendant appealed on the ground that the trial court admitted evidence of a chemical test of her breath that was administered after her arrest and after she was denied permission to telephone her attorney for advice. The Court of Appeals affirmed the conviction by an equally divided court, 36 Or App 345, 585 P2d 23 (1978), and we allowed review. The issue to be decided is whether the prosecution in a DUII case may rely on a defendant’s assent to undergoing such a breath test when defendant submitted to the…