STATE v. NEWTON

TANZER, J.

In this prosecution for driving under the influence of intoxicants, ORS 487.540, the district court suppressed evidence of a breathalyzer test of the defendant's blood alcohol content and the state appealed. The Court of Appeals affirmed on the basis of our decision in State v. Scharf, 288 Or. 451, 605 P.2d 690, rehearing den 288 Or. 621 (1980).

In State v. Scharf this court divided on whether a denial of access to counsel violated Oregon's implied consent statute and required exclusion. A majority held that ORS 487.805 as a matter of legislative policy, assured to an arrested person a "voluntary and informed choice," 288 Or at 458, whether to take a breathalyzer test which was violated by an unauthorized police refusal to allow defendant to call a lawyer for advice as to whether to consent. Three judges dissented on the ground that the legislative intent of ORS 487.805 was not to assure a voluntary and informed choice. We allowed review to re-examine our statutory determination.

FACTS

The defendant was arrested for driving under the influence of intoxicants at about 9 p.m. The validity of the arrest is not challenged. He was advised of his rights to silence and counsel. After the officer drove defendant home to leave his automobile keys and other property with his wife, defendant was taken to the county jail. At about 11 p.m. he was requested to take a breathalyzer test. The defendant then requested the opportunity to talk with a lawyer before the breath test was administered. A telephone was available in the jail at the time of the request. The officer administering the breathalyzer quoted from the standard Oregon State Police informational form and advised defendant that "regardless of any information you may have received before this request, the fact is you are not entitled to have an attorney present at this breath test and any request for delay on this ground will constitute a refusal." Defendant then submitted to the breathlyzer test and the results indicated a blood alcohol content of. 10 percent. The district court suppressed that evidence on the basis that defendant was entitled to a telephone call to consult with a lawyer before taking the test.

The full advice on the form above the signature lines is:
"CONSEQUENCES AND RIGHTS OF A DRIVER UNDER THE IMPLIED CONSENT LAW
"Regardless of any information you may have received before this request, the fact is that you are not entitled to have an attorney present at this breath test. Any request for a delay on this ground will constitute a refusal.
"If you refuse to take a breath test:
"1. Your driver's license will be suspended for 120 days.
"2. Upon your request, you will be granted a hearing. If the hearing is adverse to you, you may appeal the matter to the circuit court for a trial.
"3. Evidence of refusal is admissible in a civil or criminal court action.
"After you take the breath test:
"You will be permitted, upon your request and at your own expense, reasonable opportunity to obtain the services of a doctor or surgeon, licensed nurse, qualified technician or chemist or other qualified person of your choosing to administer a chemical test or tests to determine the alcohol content of your blood, in addition to the breath test given by a police officer.
"Do you understand what has just been read to you? Will you now take a breath test to determine the alcohol content of your blood?"

I. THE IMPLIED CONSENT STATUTE

A threshold difficulty in discerning the legislative intent embodied in ORS 487.805 is not simply that the concept of implied consent is a "statutory fiction," Scharf, 288 Or at 457, but that the fiction appears to be theoretically contradictory. An enigma appears to be at the heart of the law: If, under subsection (1), a driver has impliedly consented to a breath test which, under subsection (2), he may nevertheless refuse, then "the licensee-driver has not impliedly consented to anything." Lerblance, Implied Consent to Intoxication Tests: A Flawed Concept, 53 St Johns L Rev 39, 49 n. 36 (1978).

ORS 487.805:

"(1) Any person who operates a motor vehicle upon the highways of this state shall be deemed to have given consent subject to ORS 487.805 to 487.835, to a chemical test of the person's breath for the purpose of determining the alcoholic content of the person's blood if the person is arrested for driving a motor vehicle while under the influence of intoxicants in violation of ORS 487.540 or of a municipal ordinance. A test shall be administered upon the request of a police officer having reasonable grounds to believe the person arrested to have been driving while under the influence of intoxicants in violation of ORS 487.540 or of a municipal ordinance."

"(2) No chemical test of the person's breath shall be given under subsection (1) of this section, to a person under arrest for driving a motor vehicle while under the influence of intoxicants in violation of ORS 487.540 or of a municipal ordinance, if the person refuses the request of a police officer to submit to the chemical test after the person has been informed of:

"(a) The consequences of a refusal under ORS 482.540 to 482.560 and this section; and

"(b) The person's rights under ORS 487.810.

"(3) The person refuses a chemical test under subsection (2) of this section, the police officer shall prepare a sworn report of the refusal and cause it to be delivered to the division. The report shall disclose:

"(a) Whether the person, at the time the person was requested to submit to a test, was under arrest for driving a motor vehicle while under the influence of intoxicants in violation of ORS 487.540 or of a municipal ordinance;

"(b) Whether the police officer had reasonable grounds to believe, at the time the request was made, that the person refusing to submit to the test had been driving under the influence of intoxicants in violation of ORS 487.540 or of a municipal ordinance;

"(c) Whether the person refused to submit to a test;

"(d) Whether such person was informed of the consequences, under ORS 482.540 to 482.560 and this section, of a refusal to submit to the test; and

"(e) Whether the person was informed of the person's rights under ORS 487.810.

"(4) If a person under arrest refuses to submit to a chemical test under subsection (2) of this section or refuses to consent to chemical tests as under ORS 487.835, evidence of the person's refusal is admissible in any civil or criminal action, suit or proceeding arising out of acts alleged to have been committed while the person was driving a motor vehicle on the highways while under the influence of intoxicants."

The contradiction disappears, however, when it is realized that the words "consent" and "refusal" are not used as antonyms, because they are not used in the same sense. "Consent" describes a legal act; "refusal" describes a physical reality. By implying consent, the statute removes the right of a licensed driver to lawfully refuse, but it cannot remove his or her physical power to refuse. As another court put it:

"The obvious reason for acquiescence in the refusal of such a test by a person who as a matter of law is `deemed to have given his consent' is to avoid the violence which would often attend forcible tests upon recalcitrant inebriates. * * *

* * * * *

"* * * It is firmly established that a drunken driver has no right to resist or refuse such a test [citations]. It is simply because such a person has the physical power to make the test impractical, and dangerous to himself and those charged with administering it, that it is excused upon an indication of his unwillingness. * * *" Bush v. Bright, 264 Cal.App.2d 788, 790, 792, 71 Cal.Rptr. 123 at 124, 125 (1968) (original emphasis).

Thus refusal as contemplated by the statute is something other than withholding of consent because consent is legally implied. It is a refusal to comply with the consent which has already been given as a condition of a license to drive. The purpose of a warning of license suspension following a refusal is to overcome an unsanctioned refusal by threat instead of force. It is not to reinstate a right to choice, let alone a voluntary and informed choice, but rather to nonforcibly enforce the driver's previous implied consent.

The history of the implied consent law confirms the preceding description of the nature of consent and refusal as those terms are used in implied consent statutes. The law is designed to overcome the possibility of physical resistance, despite legal consent, without resort to physical compulsion. Tracing the history of the statute, we find that it is intertwined with constitutional caselaw, uniform legislation, and federal funding. The conclusion is clear that the concept of implied consent is rooted in a misconception of the law of due process which has become legislatively perpetuated even though the constitutional underpinnings have long since been superseded.

Implied consent statutes were initially a reaction to caselaw. The seminal case is Rochin v. California, 342 U.S. 165, 72 S Ct 205, 96 L Ed 183 (1952). There, the police, armed only with information which was less than probable cause to believe that the defendant was selling narcotics, surreptitiously entered his home and forcibly entered his room without a warrant. Defendant, seated on his bed next to his reclining wife, seized two capsules from his bedstand and placed them in his mouth. Three officers struggled unsuccessfully to extract the capsules from his mouth. Defendant was handcuffed and taken to a hospital where, at police direction and against defendant's will, a doctor forced an emetic solution through a tube into defendant's stomach, causing him to vomit. In the vomit were two capsules of morphine.

The court held that the course of conduct by which the police obtained the evidence offended "those canons of decency and fairness which express the notions of justice of English-speaking peoples" embodied in the due process clause of the Fourteenth Amendment of the United States Constitution, 342 US at 169, because

"* * * This is conduct that shocks the conscience. Illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his stomach's contents — this course of proceeding by agents of government to obtain evidence is bound to offend even hardened sensibilities. They are methods too close to the rack and the screw to permit of constitutional differentiation." 342 US at 172.

Although later cases made it clear that Rochin was based upon the totality of the police conduct, just as the opinion said, the decision was thought at the time to bar the forcible invasion of the body for seizure of evidence as violative of due process. That being so, there was concern that the Rochin theory invalidated state statutes authorizing the extraction from the body of blood, urine or other substances for testing of alcohol content. See Comment, Constitutional Law — Validity of New York Statute Setting out Motorists' Implied Consent to Chemical Tests for Intoxication, 51 Mich L Rev 1195 (1953).

One year later, the New York legislature acted in response to the Rochin decision by enacting the prototype implied consent statute. See Note, Driving While Intoxicated and the Right to Counsel: The Case Against Implied Consent, 58 Tex L Rev 935, 938 (1980). Unlike former statutes, the new statute did not authorize physical compulsion to overcome resistance to a demand for a blood sample, a practice thought to have been barred by Rochin. Rather, the statute authorized police to overcome refusal by the threat of an adverse consequence, i.e., license suspension. Nothing suggests a legislative intention to offer the driver a free choice or to create the statutory equivalent of a consent search; the objective was to create a means of non-physical coercion in order to obtain chemical samples with which to convict drunk drivers. Implied consent statutes modeled on the New York statute say only that the test "shall be administered" on request of the officer. Only if there is a refusal to submit are further procedures required.

Prior to 1965, Oregon law authorized blood, breath, or urine tests only upon the actual consent of a person arrested for driving under the influence of intoxicating liquor. This was changed in 1965 when Oregon adopted the implied consent act essentially in its present form. Its proponent explained:

Former ORS 483.630 (1) provided:

"If any person is arrested while operating a motor vehicle and is charged with then being under the influence of intoxicating liquor, the officer or person making the arrest may, upon consent of the arrested person, cause a chemical analysis to be made of the blood, breath, urine or other bodily substance of the arrested person, in order to determine the amount of alcohol then in such person's blood."

"The question of consent remains the crux of the problem today. Although we have a chemical test law to deal with the problem of the drinking driver, it is not fully utilized due to the difficulties in obtaining consent [i.e. submission]. Refusals to take a chemical test run as high as 70. in some jurisdictions. On an average, about 2/3 refuse to take a test." Testimony of Warne Nunn, Chairman, Oregon Traffic Safety Commission, representing Governor Mark Hatfield, 1-28-65, House Judiciary Committee.

The proponent continued to explain that consent would continue to be required for blood tests. For breath testing, however, an arrested person need not consent because his consent was to be implied, but the test would not be administered if refused and if the refusal is maintained after advice of the consequences.

The New York statute was upheld except in two particulars. It was held to be restricted in application to drivers who had actually been arrested. Second, administrative adjudication procedures were not sufficient. Schutt v. MacDuff, 205 Misc. 43, 54, 127 N.Y.S.2d 116, 128 (S Ct Orange Co 1954). This is significant in that it demonstrates the ancestry of the Oregon Statute. Mr. Nunn's testimony referred to the origin of the implied consent law in New York in 1953. Also, he emphasized that the proposed Oregon Statute applied only to arrested (not suspected) drivers and provided for administrative appeal and judicial review. The former requirement turned out not to be constitutionally necessary, see Cupp v. Murphy, 412 U.S. 291, 93 S Ct 2000, 36 L Ed 2d 900 (1973); and State v. Murphy, 2 Or. App. 251, 465 P.2d 900 cert den 400 U.S. 944 (1970).

Meanwhile, the constitutional assumptions arising from Rochin, upon which the implied consent act was based, had begun to erode. In 1957 a divided United States Supreme Court decided in Breithaupt v. Abram, 352 U.S. 432, 77 S Ct 408, 1 L Ed 2d 448 (1957), that a blood sample taken at the hospital from an unconscious driver was constitutionally obtained even though the body had been invaded without consent. In particular, it held, there was no "coercion" or "brutality" as in Rochin. The court held that properly drawn blood tests had become commonplace and the subjection of a person to such a test did not shock the conscience. The evidence of testing was therefore not subject to exclusion. Four justices dissented, however, on the ground that the Rochin principle was offended by any invasion of the body whether or not physical force was used. The result of Breithaupt v. Abram was that Rochin was adhered to, but the narrowness of the holding and its implications was clarified.

In the same year that the broad constitutional implications of the Rochin doctrine were rejected by the United States Supreme Court, an important legislative event tended to lock those very implications into statutory law. In 1957 the Uniform Chemical Test for Intoxication Act was promulgated. See Handbook of the National Conference of Commissioners on Uniform State Laws and Proceedings of the Annual Conference 216, 220 (1957). In 1962 implied consent was adopted as part of the Uniform Vehicle Code, § 6-205.1 (1962). Thus legislation conceived to overcome a constitutional obstacle gained institutional momentum at the very time that the United States Supreme Court removed the obstacle.

The commissioners adopted the requirement, but recognized a division of authority as to whether blood could be taken without consent, citing, among other cases, State v. Cram, 176 Or. 577, 160 P.2d 283 (1945), which held that testimony regarding a blood sample compulsorily taken from an unconscious driver was admissible.

Shortly after Oregon's enactment of ORS 487.805 (then 483.634), the United States Supreme Court removed any lingering question that consent, whether implied or acutal, was necessary to overcome constitutional limitations upon mandatory blood testing. In Schmerber v. California, 384 U.S. 757, 86 S Ct 1826, 16 L Ed 2d 908 (1966), the court held that, under proper circumstances, the state could constitutionally compel a person to submit to extraction of blood for testing to determine alcohol content. The Court upheld the use in a prosecution for driving under the influence of liquor of test results from a blood sample taken by a physician at the direction of a policeman from a conscious person over his objection. The Court stated, as it had in Breithaupt v. Abram, that the extraction did not offend the "sense of justice" referred to in Rochin, that there was no compelled self-incrimination under the Fifth Amendment because the evidence was not testimonial, and that the seizure was permissible under the Fourth Amendment because there was probable cause to believe evidence of crime was in defendant's blood and that delay would likely destroy the evidence, and because the manner of extraction was reasonable. Again, four judges dissented. The Schmerber decision was consistent with preexisting Oregon law, see State v. Cram, supra, n 5, and neither court has withdrawn from that constitutional principle. After Schmerber, it has been observed:

"* * * Paradoxically, as a result of Schmerber, states without `implied consent' statutes can compel a motorist to undergo a chemical test, while in states with `implied consent' statutes the motorist has the option to refuse the test." Comment: Florida's `Implied Consent' Statutes: Chemical Tests for Intoxicated Drivers, 22 U Miami L Rev 698, 727 (1968).

In the same year as Schmerber, the legislative movement for implied consent gained another source of momentum. Congress adopted the Highway Safety Act of 1966, 23 U.S.C. § 401 — 406. One year later, the Department of Transportation formulated standards under the Act, applicable to the states, including Highway Safety Standard No. 8, which required an implied consent enforcement scheme. See H.R. Doc. No. 138, 90th Cong., First Sess. 9, 1967. All 50 states now have implied consent laws, almost half of them adopted since Schmerber. Although it has been suggested that post- Schmerber adoption of such laws reflects a legislative desire for greater protection of arrested drivers than is constitutionally required, see Hunvald Zimring, Whatever Happened to Implied Consent? A Sounding, 33 Mo L Rev 323, 323-324 (1968), and Lerblance, supra at 47 n 22, no evidence or history is submitted to support that view. Rather, one commentator has concluded in view ot this federal legislative history that:

"* * * [I]mplied consent is a much a result of historical snowballing as of a considered choice by legislatures, * * *." 58 Tex L Rev at 959.

Thus it is, he stated, that

"* * * Although implied consent developed as a means of facilitating the use of chemical evidence, the statutes currently constitute the primary barriers to the use of that evidence * * *." Ibid.

Despite the decision in Schmerber, implied consent has not been repealed in Oregon. To do so would threaten the receipt of funds under the Highway Safety Act. There have been two amendments, however, which are significant as to legislative intent regarding consent and refusal. In 1975, as an ancillary to enactment of a revised traffic code, the license suspension period under ORS 482.540 (1) for refusal to take a breath test was increased from 90 days to 4 months, Oregon Laws 1975, ch 451, § 146. The reason was that with the "decriminalization" of the traffic code, "people were going to refuse to take the test" unless the penalty for refusal was made more severe. Testimony of Chief Judge Herbert M. Schwab, 6-12-74, Interim Committee on Judiciary. In 1979, another adverse consequence of refusal was provided. The legislature enacted ORS 487.805 (4), which allows evidence in subsequent legal proceedings of refusal to take the breath test. Both legislative changes were intended to compel submission rather than to promote freedom of choice.

It is significant that the legislature used the phrase "refuses to consent" when referring to other chemical tests, but the phrase "refuses to submit" when referring to the breathalyzer test. See ORS 487.805 (4), supra at n. 2.

The preceding history does not support the conclusion in Scharf that ORS 487.805 embodies "the legislative decision that the breath test is to be administered only upon the arrested person's voluntary and informed choice." 288 or at 461. Rather, it confirms our earlier conclusion in State v. Fogle, 254 Or. 268, 459 P.2d 873 (1969), that the option of refusal under the statute does not imply a requirement of "voluntary submission":

"* * * While the statute recognizes that a person may refuse to submit to the test, the legislature could hardly have contemplated that it was necessary that there be a completely knowing and understanding submission. If this were the case, the only people who could be tested would be those who were not sufficiently intoxicated to interfere with their mental processes." 254 Or at 270.

Our description of legislative meaning in Fogle was consistent with the history of the statute. The very concept of implied consent in ORS 487.805 (1) was intended to eliminate the right of choice and to recognize actual choice only in the sense of a forbearance of physical resistance. See Bush v. Bright, supra. Under ORS 487.805 (2), the arrested driver must make the initial choice to submit or refuse without the benefit of any information from the police. If anything, this indicates a legislative intent to promote uninformed submission rather than informed choice. The police are obliged to give the arrested driver information only after he first "refuses the request of the police officer to submit to the chemical test" of his breath. Had the legislature been concerned "with assuring the arrested driver a voluntary and informed choice" as we stated in Scharf, 288 Or at 459, it surely would have required the police to advise the driver before, not after, the driver first chooses to submit or refuse. If the breath seizure were "the very stage that the legislature expressly required to be voluntary and informed" as we stated in Scharf, 288 Or at 460, the legislature would have required that the information be provided before, not after, drivers provide the evidence by submitting to the officer's initial request.

Instead, ORS 487.805 (2) provides that for drivers who comply with the officer's initial request for a breath sample, the process is at an end even though the driver may never have been advised of anything. For drivers who refuse, the purpose of the statute is to provide an effective means short of physical force (in view of Rochin) to overcome the refusal. The nonphysical means consist of the statutory creation of a penalty (i.e., an extensive license suspension) and a warning from a police officer (as police officer, not as surrogate defense lawyer) that the driver's license will be suspended if he or she continues to refuse. Thus the consent envisioned by the statute is to be implied and if submission is not forthcoming, it is to be coerced by fear of adverse consequences. Defendant's request to call a lawyer is not material to statutory compliance.

In this case, defendant's consent had alredy been impliedly given in the sense that he accepted testing as a condition of his license to drive. His submission was obtained in the statutory manner. Therefore, the implied consent statutes were complied with and they give no basis for suppression of evidence of the results of the chemical test of the defendant's breath.

We have held that breathalyzer analyses obtained in non-compliance with statutory provisions which relate to reliability of the test are not admissible. See, e.g., State v. Fogle, 254 Or. 268, 459 P.2d 873 (1969). This is a rule of competency of evidence rather than an exclusionary rule. We have not held that non-compliance with the advice requirements would lead to exclusion, although see Scharf, 288 Or at 461 n 10, and we need not reach that issue here.

II. CONSTITUTIONAL CLAIMS

Defendant has also relied throughout on the Oregon and United States Constitutions as bases for suppression. Although his arguments in defense of the order of suppression have centered on Scharf, he has expressly continued to assert his constitutional rights to freedom from unreasonable seizures and to counsel. Having held that ORS 487.805 was not violated, we now address defendant's constitutional assertions.

A. Seizure

We begin by examining the constitutional propriety of the seizure of defendant's breath sample. The Oregon State Police are charged with enforcement of Oregon's traffic laws, ORS 181.040, and they are therefore authorized to take such actions as reasonably tend to accomplish that statutory responsibility and which are not prohibited by law. Obviously, obtaining evidence of traffic offenses is action which has a reasonable tendency to accomplish traffic law enforcement. In constitutional terms, the taking of physical evidence, e.g., defendant's breath, is a seizure and unreasonable seizures are prohibited by the Fourth Amendment of the United States Constitution and Article I, section 9, of the Oregon Constitution. We must therefore decide whether these constitutional limitations on the authority to seize were transgressed in this case.

There was no warrant for the seizure. Therefore, if the seizure is constitutionally valid, it must come within an exception to the warrant requirement.

1. Consent

The warrant requirement may be excused if there is consent. By this, we mean actual consent. Defendant's statutorily implied consent cannot excuse an otherwise unconstitutional seizure. If defendant's submission may be regarded as a consent to seize, it was an informed consent in that defendant knew that he had the option of refusal, cf. State v. Flores, 280 Or. 273, 570 P.2d 965 (1977). The controlling principle is that effective consent must be voluntary. That is, the consenting person's will may not be overborne. Schneckloth v. Bustamonte, 412 U.S. 218, 225-226, 93 S Ct 2041, 36 L Ed 2d 854 (1973). Where a person's consent to a seizure is solicited, and the person consents only after being warned that he will suffer a substantial penalty if he refuses, the resulting consent cannot be regarded as a free exercise of will. We therefore hold that defendant's submission to the breath test was not a voluntary consent to seizure because it was coerced.

Voluntariness in this context is not the same as waiver in other contexts. For example, unlike the law of testimonial self-incrimination, cf. Miranda v. Arizona, there is no necessity that a consenting person be informed of his right to consult with counsel and that he waive that right preliminary to a valid consent to search. United States v. Watson, 423 U.S. 411, 96 S Ct 820, 46 L Ed 2d 598 (1976). See, State v. Flores, supra.

2. Probable Cause; Exigent Circumstances

The warrantless seizure was nevertheless not forbidden by the Fourth Amendment or Article I, section 9, because there was both probable cause to believe that defendant's breath contained evidence of intoxicants and exigent circumstances making it likely that the evidence would dissipate if time were taken to obtain a warrant for its seizure. The validity of the arrest for driving under the influence of intoxicants is not challenged and blood alcohol content is a transitory condition. In such a case, neither constitution prohibits the police from compelling a person to submit to physical extraction of blood over the refusal of the person and the objection of his lawyer. Schmerber v. California and State v. Heintz, 286 Or. 239, 594 P.2d 385 (1979); accord re fingernail scrapings, Cupp v. Murphy, 412 U.S. 291, 93 S Ct 2000, 36 L ed 2d 900 (1973). The assistance of counsel is not material to the validity of the seizure because defendant has no right to refuse and "he has no greater right because counsel erroneously advised him that he could assert it." Schmerber, 384 US at 765-66. That is a dominant constitutional principle of this case: statutory considerations aside, the police could have lawfully compelled defendant to provide a breath sample for testing regardless of whether defendant called a lawyer and regardless of whether defendant had refused to submit to the seizure. Therefore, we conclude that the search and seizure provisions of neither constitution were violated.

B. Right to Counsel

Defendant's right to counsel is material because his request to call a lawyer was discouraged by advice that delay therefor would be deemed a refusal, resulting in a license suspension. In effect, the discouragement of defendant's request was a denial of it.

Neither Article I, section 9, nor the Fourth Amendment forbid compulsion; they allow compulsion when warranted or otherwise reasonable. The right of counsel does not apply under the Fourth Amendment as it does under the Fifth Amendment because a reasonable search and seizure need not be voluntary. Rather, as we said above, seizure may be compelled regardless of the action of an attorney. Schmerber v. California, State v. Heintz, Cupp v. Murphy, all supra. No right of counsel is implied by the right of freedom from unreasonable seizures. Therefore, the discouragement of defendant's call to an attorney has no effect on the validity of the seizure in this regard.

It is also arguable that counsel is required because the breathalyzer request is a critical stage of the prosecution. See State v. Fitzsimmions, 93 Wn.2d 436, 610 P.2d 893 (1980). The right to counsel attaches to certain evidence-gathering processes which are deemed "critical stages" of the prosecution as an extension of a defendant's right to representation by counsel in court. Any pre-trial adversarial contact of the state and a defendant at which some benefit of counsel would be lost if counsel is not present, that is, at which the state's case may be enhanced or the defense impaired due to the absence of counsel, may be considered a critical stage of the prosecution at which defendant has a right to the presence of counsel. Thus, under the Sixth Amendment, surreptitious questioning of an indicted defendant in the absence of counsel is deemed a denial of counsel at a critical stage of the prosecution. Massiah v. United States, 377 U.S. 201, 84 S Ct 1199, 12 L Ed 2d 246 (1964). Similarly, a defendant is entitled to the presence of counsel at a post-indictment line-up because it is deemed a critical stage of the prosecution. United States v. Wade, 388 U.S. 218, 87 S Ct 1926, 18 L Ed 2d 1149 (1967), Gilbert v. California, 388 U.S. 263, 87 S Ct 1951, 18 L Ed 2d 1178 (1967). Evidence obtained at a critical stage at which the right to counsel has not been afforded or waived is subject to exclusion.

The breathalyzer test in this case cannot be characterized as a critical stage. Any evidence gathering, however early in the investigation or prosecution, may affect the ultimate adjudication and could therefore logically be regarded as a critical stage. A breathalyzer request and submission is such a process. Yet, no law requires the police to secure a lawyer for every person from whom evidence is sought at any time in the course of an investigation at the risk of having evidence suppressed if the person is ultimately charged. Not every evidence-gathering procedure is a critical stage. Obviously, the critical stage concept has a limit and that limit was set by the U.S. Supreme Court in Kirby v. Illinois, 406 U.S. 682, 92 S Ct 1877, 32 L Ed 2d 411 (1972). The majority upheld evidence from a post-arrest, pre-indictment identification procedure. It held that an adversarial contact is a critical stage in the prosecution only after the defendant is formally charged:

"The initiation of judicial criminal proceedings is far from a mere formalism. It is the starting point of our whole system of adversary criminal justice. For it is only then that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law. It is this point, therefore, that marks the commencement of the `criminal prosecutions' to which alone the explicit guarantees of the Sixth Amendment are applicable. [Citations omitted.]" 406 US at 689-690.

Justice Powell concurred, making the plurality, on the basis that the exclusionary rule should not be further extended.

The Washington Supreme Court in Fitzsimmons, supra, cited Kirby for the definition of "critical stage," but disregarded the principal holding of Kirby that the concept is limited to confrontations after a formal charge is laid. Moreover, the Fitzsimmons opinion was preliminarily based on a judicial rule requiring police to promptly allow an arrested person a telephone call. Fitzsimmons also relies on United States v. Wade, supra, but the opinion is inconsistent with this dicta in Wade which is applicable to breathalyzer submission once Schmerber is taken into account:

"The Government characterizes the lineup as a mere preparatory step in the gathering of the prosecution's evidence, not different — for Sixth Amendment purposes — from various other preparatory steps, such as systematized or scientific analyzing of the accused's fingerprints, blood sample, clothing, hair, and the like. We think there are differences which preclude such stages being characterized as critical stages at which the accused has the right to the presence of his counsel. Knowledge of the techniques of science and technology is sufficiently available, and the variables in techniques few enough, that the accused has the opportunity for a meaningful confrontation of the Government's case at trial through the ordinary processes of cross-examination of the Government's expert witnesses and the presentation of the evidence of his own experts. The denial of a right to have his counsel present at such analyses does not therefore violate the Sixth Amendment; they are not critical stages since there is minimal risk that his counsel's absence at such stages might derogate from his right to a fair trial." United States v. Wade, 388 US at 227-28.

It is arguable that we should adopt an earlier point, e.g., the arrest, by which to define the commencement of "all prosecutions" as that term is used in Article I, section 11, of the Oregon Constitution, but we conclude that the formal charge is the legal event which commences the obligation of the state to provide counsel. Functionally, there are no legal procedures for the appointment of counsel for indigents prior to a formal charge being brought and, as we observed in Scharf, 288 Or at 456 n 4, the decision to commence criminal rather than administrative proceedings is commonly not made until after a breathalyzer test is refused or taken and the result known. See Prideaux v. State Dept. of Public Safety, 310 Minn. 405, 247 N.W.2d 385, 388-389 (1976). Hence, under Article I, section 11, we concur in the reasoning of Kirby that the right to counsel "in all criminal prosecutions" includes critical stages of the prosecution subsequent to indictment or other formal charge. Because this defendant had not been charged, no right to counsel under either constitutional provision had yet attached.

C. Liberty

Finally, if any right or interest was denied defendant by the discouragement of his request for counsel, it was that to which we referred in Scharf as "the long established and well-known right of any arrested person to call an attorney," 288 Or at 460. To know the extent of that personal right and the limitation imposed upon the state by its existence, and in order to determine the effect of that right in individual cases, it is necessary to identify its theoretical basis. However "long established and well-known" the right of an arrested person to a phone call may be, a survey of the caselaw and authorities fails to yield any helpful discussion of the right other than in the context of helpful discussion of the right other than in the context of evidence gathering or representation during the prosecution as we discussed above. Nor have counsel been able to articulate a source of such a right. Yet any practice so traditionally and rigorously observed must have roots deep in the law. This case is unusual in that there may be an evidentiary effect to defendant's request to call a lawyer and hence we are called upon to give some definition to the rights of communication of an arrested person for application to this case.

The usual analytical focus on a right to counsel is misleadingly narrow. The ultimate issue in this case is one of liberty, not safeguards. It is axiomatic from our organic concept of constitutioal government that every person's liberty is complete except as the people have granted to themselves collectively (i.e., to the government) the power to restrict individual liberty. The idea is as fundamental as the Social Contract and it is embodied in the Fourteenth Amendment to the United States Constitution which forbids states to "deprive any person of * * * liberty * * * without due process of law." Thus, for example, we are free to cross streets at will, but that freedom is subject to lawful governmental restriction as to time and place to serve public safety and traffic needs because we, the people, have given police power to the government to regulate liberty in such ways as have a reasonable tendency to accomplish those social objectives.

Our constitutionally assured liberty is not limited to the rights itemized in the Bill of Rights such as those we discussed above. Rather, the liberty referred to by the Fourteenth Amendment, in the absence of lawful governmental restriction, is general in scope and variety. Justice Harlan expressed the idea well:

"* * * [T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This `liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impostions and purposeless restraints * * * and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment. * * *" Poe v. Ullman, 367 U.S. 497, 543, 81 S Ct 1752, 6 l Ed 2d 989 (1961) (opinion of Harlan, J., dissenting from dismissal of appeal) (citations omitted).

We believe that analysis to be sound and to be applicable to this case. Defendant's freedom to call a lawyer before deciding to submit to breathalyzer testing was not safeguarded in this situation by the Sixth or Fourth Amendments, but, under the Fourteenth Amendment, his freedom to do so could not be foreclosed or deferred unless the police were authorized to do so. Defendant's liberty to communicate as he chose was to be free from "purposeless restraints," but subject to lawful restraints. Therefore, we look next to the magnitude and nature of the liberty and to whether the record discloses a lawful purpose for the denial of that liberty.

The opportunity of an arrested person to promptly communicate beyond confinement is not necessarily of the same magnitude of liberty as marital and procreational privacy which the United States Supreme Court held could only be restricted for "compelling" public interests, see Griswold and Roe, supra n 10. Neither, however, is it a minimal thing beneath the notice of the law. The everyday freedom to communicate with others takes on greater importance when one is in the enforced isolation of police custody. Communication may be the means to security release, advice, reassurance of one's family or associates, or professional assistance. For at least these reasons, allowance of a telephone call following arrest has become traditional and incommunicado incarceration is regarded as inconsistent with American notions of ordered liberty. Freedom of an arrested person to communicate is a significant and substantial liberty which may only be officially restricted if there is legal authority to do so.

As we observed above, the authority of the police to enforce the traffic laws carries with it the authority to do all things which have a reasonable tendency to accomplish that responsibility which are not otherwise prohibited by law. Executive actions such as traffic control, detention for license checks, arrests, searches, jailing, etc., necessarily restrict some aspect of personal liberty to the degree reasonably required for the performance of that lawful act, but they are nevertheless permissible if they are within the lawful authority of the police agency to enforce the traffic laws.

The police may lawfully restrict the freedom of an arrested person to communicate to the degree reasonably required for the performance of their duties. For example, where the police are authorized to seize "highly evanescent evidence," see Heintz, 286 Or at 248, and delay caused by an attempt to call counsel would impair their ability to effectively do so, they may require that the arrested person's exercise of the freedom to call be deferred until after completion of the seizure.

Here, there was no showing that the time required to make a call would have reduced the efficacy of the breathalyzer test. Indeed, the police allowed about two hours to transpire between the arrest and the breathalyzer request, which suggests a lack of urgency. Moreover, Oregon Administrative Rule 333-13-020 (1972), which regulates the manner of breathalyzer testing, requires that the person be under observation for 15 minutes prior to the test. The record discloses no reason why a call on an available telephone during the observation period would impair the evidence gathering process, assuming the arrested person did not object to observation during the call. Nor is there evidence of the existence of what we referred to in State v. Haynes, 288 Or. 59, 70, 602 P.2d 272 (1979), as "the practical necessities of custody" which might have justified deferring defendant's call to counsel. Moreover, in the absence of any such circumstances, the absolute advice on the Oregon State Police form that "[a]ny request for a delay [to have a lawyer present] will constitute a refusal," see n. 1, supra, was not legally correct in this case. In sum this record provides no support for a holding that the police were authorized in the performance of their duties to restrict defendant's freedom by threatening adverse consequences if defendant telephoned counsel.

We emphasize that our holding is based upon an unauthorized restriction of personal liberty, and not upon the denial or violation of a specific right enumerated in the Bill of Rights. That distinction is material. A denial of a right, e.g., the right to counsel at a critical stage of the prosecution, may occur if there is no advice, provision for the indigent, or express, knowing and voluntary waiver of that right. Freedom from interference with liberty, however, is different from entitlement to a right. The state is barred from unlawfully restricting liberty, but it is not obliged to itemize to a person all the actions he is free to take nor to provide an indigent person with the means to exercise his freedom as a precondition to the state's taking action. Here there was no failure of the police to perform any obligation to protect defendant's right to counsel; rather, under these circumstances, there was only an unauthorized restriction of defendant's freedom to call counsel.

III. EXCLUSION

We observed in the context of self-incrimination in State v. Haynes, 288 Or at 71:

"* * * No one so far has suggested that interference with an arrested person's access to a lawyer, however improper and subject to other remedies, would itself lead to a reversal of a subsequent conviction if defendant in fact said nothing and no evidence was obtained as a result nor other harm done to his eventual defense. Thus it is not a generalized right to counsel that the decisions we have quoted enforce but, more concretely, the derivative right to the benefit of counsel's efforts to forestall involuntary and incriminating disclosures. * * *"

Exclusion of evidence is a practical device intended to deter agents of the state from acting beyond constitutional limitations. As we recently observed in State v. Quinn, 290 Or. 383, 397, 623 P.2d 630 (1981):

"* * * The device of excluding trustworthy evidence from the factfinding process in order to serve higher purposes `is a needed, but grudgingly taken medicament; no more should be swallowed than is needed to combat the disease.' Amsterdam, Search, Seizure, and Section 2255, 112 U Pa L R 378, 389 (1964)."

We have often applied the exlusionary rule in the context of denials of rights enumerated in the Bill of Rights, but this case is our first occasion to consider exclusion for deprival of liberty assured by the Due Process Clause.

We decline to require exclusion of the evidence for reasons arising from this record and also for reasons which transcend this particular case. This record is insufficient to establish the fact of a causal (rather than merely sequential) relationship between the request to call a lawyer and the obtaining of the breath sample. Defendant's request for an opportunity to talk to a lawyer was general. There is no evidence that he had a lawyer or that lawyer was available, or of any other fact from which it can be inferred that if defendant had been given an opportunity, it was reasonably likely to have been fruitful. The evidence shows no indication that if defendant had been given the telephone and a few minutes to use it, he would have secured legal advice and, if so, whether the advice would be to take the test or not. A causal relationship between the official impropriety and the giving of evidence must be established by one who seeks to exclude the evidence on the ground that it is a result of that impropriety. State v. Quinn, supra, and Wong Sun v. United States, 371 U.S. 471, 83 S Ct 407, 9 L Ed 2d 441 (1963). This record, at best, would allow us to do no more than speculate as to whether an opportunity to call a lawyer would have caused an evidentiary result.

The request alone may be sufficient in a Fifth Amendment or Sixth Amendment context, cf. Miranda v. Arizona, supra n 8, but here we are considering only a restriction of liberty, not a denial of rights.

On the broader issue, we find no case requiring or not requiring exclusion for deprival of constitutionally protected liberty interests. We begin our scratch analysis by observing that there is not just an exclusionary rule, there are several exclusionary rules, each with its own purposes and requirements. As we said in Scharf:

"Decisions on admitting or excluding improperly obtained evidence are not instances of a single `exclusionary rule.' Rather, they depend on whether the premise of the impropriety was a law addressed to the manner of obtaining or using the evidence or a law protecting some unrelated interest. * * *" 288 Or at 461, n 10.

Although the rules differ, it is appropriate to review them briefly to discern principles which may guide us in determining whether exclusion of evidence obtained following a restriction of liberty must be excluded.

The exclusionary rule is applied absolutely to the fruits of violation of the Fifth Amendment. Miranda v. Arizona, 384 U.S. 436, 86 S Ct 1602, 16 L Ed 2d 694 (1966). This is so because one's right not to be convicted upon one's own compelled testimony is absolute. It is not subject to moderation due to competing policies, situational variables or considerations of reasonableness. Because liberty interests are not absolute, see Section II C, above, Fifth Amendment law does not provide an apt analogy.

Nor is Sixth Amendment law, as it applies to evidence gathering, particularly apt. Massiah v. United States, supra, a Sixth Amendment case regulating interrogation in the absence of counsel, may now be subsumed in post- Miranda Fifth Amendment law, see e.g., Brewer v. Williams, 430 U.S. 387, 398, 97 S Ct 1232, 51 LEd2d 424 (1977). Moreover, the lineup cases, Wade and Gilbert, supra, limit exclusion to evidence obtained solely during critical stages as an aspect of the right to confront witnesses. See also Kirby v. Illnois, supra. The reasons for exclusion in these cases do no exist here.

Fourth Amendment cases are based on principles of reasonableness and competing policy considerations. Hence they are of greater analogical significance in this case. The source of the federal exclusionary rule was Weeks v. United States, 232 U.S. 383, 34 S Ct 341, 58 LEd 652 (1914), in which the United States Supreme Court declined to be a party to Fourth Amendment violation by allowing use of evidence obtained. By the time of Mapp v. Ohio, 367 U.S. 643, 81 S Ct 1684, 6 LEd2d 1081 (1961), the underlying theory of exclusion had changed somewhat. The court took a pragmatic, rather than analytical, approach. It observed from the cases over the years that violations of privacy were common, that the states had found no alternative method of deterring such violations and that exclusion was therefore required for that purpose.

Since Mapp, judicial emphasis has varied somewhat, but the United States Supreme Court adheres to the view that deterrence is the dominant purpose of the Fourth Amendment exclusionary rule, but that the rule need not be applied so as to achieve maximum possible deterrence. Indeed, in United States v. Salvucci, 448 U.S. 83, 100 S Ct 2547, 65 L Ed 2d 619 (1980), the court opted for a narrow application of the exclusionary rule because a broader application was not necessary to achieve deterrence. This theory may allow for narrowing the rule by non-exclusion where the police violate privacy rights despite their good faith intent to comply with the Fourth Amendment, United States v. Williams, 622 F.2d 830, 840-848 (5th Cir 1980).

Prior to Mapp, this court never had occasion to adopt an exlusionary rule because it had never found a search or seizure to be unlawful. In dicta, the court stated that if the occasion ever arose, it would probably apply the federal rule for the federal reasons, State v. Laundy, 103 Or. 443, 204 P. 958, 206 P. 290 (1922), see also State v. Hoover, 219 Or. 288, 347 P.2d 69 (1959), but it did not formulate a separate or alternative theory which should guide our hand today.

Subsequent to Mapp, this court has purported to apply and adopt federal search and exclusionary law. See, e.g., State v. Florance, 270 Or. 169, 527 P.2d 1202 (1974). It has also excluded evidence for violation of a statute which protects privacy, State v. Valdez, 277 Or. 621, 561 P.2d 1006 (1977), but not for violation of statutes which promote safety and accountability in search and seizure procedures, State v. Valentine/Darroch, 264 Or. 54, 60, 504 P.2d 84 (1972), and State v. Cortman, 251 Or. 566, 571, 446 P.2d 681 (1968), cert den 394 U.S. 951 (1969). These cases provide no analytical help beyond what is found in federal caselaw.

The empirical and pragmatic approach in Mapp v. Ohio is consistent with an approach expressed in State v. Shipley, 232 Or. 354, 375 P.2d 237 (1962). There we reconsidered whether to adopt the federal McNabb-Mallory rule which holds that statements obtained during a period of noncompliance with the statutory requirement that an arrested person be brought promptly before a magistrate, must be suppressed even though voluntarily given. In Shipley, we concluded that the statute requiring a hearing without delay had been violated and that a voluntary confession had been elicited during the delay. We declined to adopt a rule of suppression, however, because the statute did not require it and because the confession was voluntary. Two judges dissented. Of significance, however, and most similar to the rationale in Mapp, was the observation of Goodwin, J., concurring, that we should not automatic ally adopt an exclusionary rule. Rather, if the event were repeated and became a practice, we would reconsider adopting an exclusionary rule in order to deter future violations of law. As he put it:

"If those primarily charged with the duty of enforcing the law are unwilling or unable to discharge their duty in this respect, then the courts should not shrink from their duty. * * *" 232 Or at 366.

McNabb v. United States, 318 U.S. 332, 63 S Ct 608, 87 LEd 819 (1943); Mallory v. United States, 354 U.S. 449, 77 S Ct 1356, 1 LEd2d 1479 (1957).

There are parallel considerations in this situation. The trustworthiness of the evidence is unaffected by the police conduct. The form used by the police implies an improper pattern of past conduct, but we may reasonably suppose that the form is the result of a good faith misunderstanding of the law rather than from an official intention to evade the law's requirements or to hold arrested drivers incommunicado. We may expect that the clarification of law in this opinion will be sufficient to cause a change in police practice and deter future similar conduct without the necessity of creating a new exclusionary rule. If repeated violation occurs, then as the United States Supreme Court did in Mapp and Justice Goodwin warned in Shipley, we may consider resort to the exclusionary rule as a necessary means to deter future violations. For now, however, as we phrased it in Quinn, the disease is not so advanced that we need to swallow more of the "`grudgingly taken medicament.'" The order of suppression is reversed, and the evidence of defendant's breath test may be used at trial.

Cf. State v. Jones, 279 Or. 55, 60, 566 P.2d 867 (1977), in which we required suppression of a blood test due to unethical prosecutorial conduct in obtaining it.

Reversed and remanded for trial.