State v. Newton

¶1concurred, making the plurality, on the basis that the exclusionary rule should not be further extended.9

¶2It 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 NW2d 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 *805stages 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.

¶3C. Liberty

¶4Finally, 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.

¶5The 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.eto 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 *806such ways as have a reasonable tendency to accomplish those social objectives.

¶6Our 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 US 497, 543, 81 S Ct 1752, 61 Ed 2d 989 (1961) (opinion of Harlan, J., dissenting from dismissal of appeal) (citations omitted).10

¶7We 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 *807the 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.

¶8The 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.

¶9As 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.

¶10The 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 *808effectively do so, they may require that the arrested person’s exercise of the freedom to call be deferred until after completion of the seizure.

¶11Here, 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 P2d 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.

¶12We 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 *809any 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.

¶13III. EXCLUSION

¶14We 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. …

¶15Exclusion 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 P2d 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).”

¶16We 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.

¶17 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 *810indication 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.11 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 US 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.

¶18On 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.

¶19Although 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.

¶20The exclusionary rule is applied absolutely to the fruits of violation of the Fifth Amendment. Miranda v. Arizona, 384 US 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.

¶21*811Nor 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 US 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.

¶22Fourth 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 US 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 US 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.

¶23Since Mapp, judicial emphasis has varied somewhat, but the United State 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 US 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 F2d 830, 840-848 (5th Cir 1980).

¶24Prior to Mapp, this court never had occasion to adopt an exlusionary rule because it had never found a *812search 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 P2d 69 (1959), but it did not formulate a separate or alternative theory which should guide our hand today.

¶25Subsequent 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 P2d 1202 (1974). It has also excluded evidence for violation of a statute which protects privacy, State v. Valdez, 277 Or 621, 561 P2d 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 P2d 84 (1972), and State v. Cortman, 251 Or 566, 571, 446 P2d 681 (1968), cert den 394 US 951 (1969). These cases provide no analytical help beyond what is found in federal caselaw.

¶26The empirical and pragmatic approach in Mapp v. Ohio is consistent with an approach expressed in State v. Shipley, 232 Or 354, 375 P2d 237 (1962). There we reconsidered whether to adopt the federal McNabb-Mallory rule12 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:

*813“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.

¶27There 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.13 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 Mappand 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.

¶28Reversed and remanded for trial.

¶34specially concurring.

¶35I concur in the result reached by the opinion by Tanzer, J. I question, however, its holding that the right of a person arrested to call an attorney is a constitutional “liberty” under the Fourteenth Amendment of the Constitution of the United States. No such contention was made by defendant in this case. I agree that a person arrested has a right to call an attorney, but am not prepared to hold at this time that such a right is a constitutional “liberty” under the Fourteenth Amendment.

¶36With respect to the vigorous dissent by Linde, J., I agree with much of its criticism of that constitutional *814analysis in the opinion by Tanzer, J. As pointed out by that dissent, however, the previous decision by this court in State v. Scharf, 288 Or 451, 605 P2d 690 (1980), was not based upon constitutional grounds, but upon the grounds that the defendant in that case had a right to call her attorney under existing Oregon law, regardless of federal constitutional law, and that it follows from this violation of Oregon law that the results of the breathalyzer test must be excluded.

¶37I agree with the decision in Scharfon the first ground, but disagreed, and still disagree, with the second ground of that decision. In my view, the exclusionary rule should ordinarily be applied only for violations of constitutional rights and should not ordinarily be applied for violations of statutes or on other non-constitutional grounds.1See State v. Valentine/Darroch, 264 Or 54, 66-69, 504 P2d 84 (1972). See also State v. Bishop, 288 Or 349, 605 P2d 642 (1980); State v. Valdez, 277 Or 621, 629, 561 P2d 1006 (1977); State v. Cortman, 251 Or 566, 571, 446 P2d 681 (1968). It is also my view that the exclusionary rule is a rule which should be strictly construed in cases such as this. Driving while under the influence of intoxicants is an offense which is the cause of more deaths than any other crime or offense.

¶38To admit into evidence the results of a breathalyzer test taken without advice of counsel is no more unreasonable, in my opinion, than to admit into evidence the results of a blood alcohol test from blood taken from an unconscious driver in a hospital, as held to be admissible in Breithaupt v. Abram, 352 US 432, 77 S Ct 408, 1 LED 2d 448 (1957). See also State v. Heintz, 286 Or 239, 594 P2d 385 (1979). For these reasons, I concur in the result reached by the majority.

¶40dissenting.

¶41I have joined in Justice Linde’s dissent, but I wish to elaborate on a point only lightly touched upon in his dissent.

¶42In State v. Scharf, 288 Or 451, 605 P2d 690 (1980), we rendered a decision which was primarily a matter of interpretation of statutes of the State of Oregon. This court has specifically held that its interpretation of a statute becomes “a part of the statute as if written into it at the time of its enactment.” State of Oregon v. Elliott, 204 Or 460, 465, 277 P2d 754, cert. denied 349 US 929, 75 S Ct 772, 99 L Ed 1260 (1955).

¶43Since the decision in Scharf, the legislature has met in regular session and failed to take any action which would indicate displeasure with that decision. Ordinarily, I would be loath to consider legislative failure to act in response to a judicial decision as having much weight in determining whether the Legislative Department of state government approved our interpretation of a statute, for mere inaction by the legislature may result from simple inattention or the pressures of other legislative business, but we do not have here a case of mere inaction.

¶44We have, rather, the situation in which the matter has been brought to the attention of the legislature by a concerned governmental agency, and a refusal by the legislature to overturn the result of our decision in Scharf. The Department of Transportation, established as a part of the Executive Department of Oregon state government, Or Const. Art III, § 1, ORS 184.615, caused a bill to be “presession” filed in the 1981 regular legislative session. The obvious purpose of the bill, House Bill No. 2021, was to overturn the decision of this court in Scharfthat the evidence was to be excluded. Rather than waste space by setting forth the bill in its entirety, I quote the summary printed on the bill:

“Permits use of chemical test results, administered pursuant to the Implied Consent Law, as evidence regardless of whether or not the driver was given opportunity to obtain advice of counsel.”

¶45*816This bill received the immediate attention of the legislature. That body convened on January 12, 1981, and the bill was referred to the House Committee on Judiciary on January 15. On February 16, a subcommittee held a hearing on the bill. On April 15 under House rules the bill was tabled in committee for want of affirmative action. On April 21, the other subcommittee of the House Judiciary Committee held a hearing on the bill despite the fact that it had already been tabled. On April 30 during a work session the bill was taken from the table, considered, and again tabled in committee.

¶46We see, therefore, that the legislature, acting according to the rules and methods which it has adopted for carrying out its functions and responsibilities, rejected the Executive Department’s express request to overturn our holding in Scharfthat the evidence must be excluded. I would also note that the 1981 session of the legislature otherwise devoted a great deal of attention to laws relating to driving while under the influence of intoxicants and left unchanged our decision in Scharf

¶47Given both this legislative special attention to the rule of Scharfand that body’s general concern with closely-related laws, I conclude that the legislature’s inaction here should be viewed much the same as the situation in which a legislative body, while amending or revising a particular body of law, has left the challenged section alone.

¶48The situation in the case at bar is much like that before the United States Supreme Court in United States v. South Buffalo R. Co., 333 US 771, 68 S Ct 868, 92 L Ed 1077 (1948), where the Supreme Court was faced with a challenge to its prior decision interpreting a part of the Interstate Commerce Act in a case entitled United States v. Elgin, Joliet & Eastern R. Co., 298 US 492, 56 S Ct 841, 80 L Ed 1300 (1936). After the Elgin decision the Interstate Commerce Commission had entreated Congress to overrule that decision by legislation. As in the case before us, the Commission had caused a bill to be introduced for that purpose and Congress had refused to enact the requested legislation. In the South Buffalo case the United States asked the court, in effect, to reject its former interpretation of the statute. The court responded:

*817“It is the Government’s contention that the Elgin decision misconstrued the Act, misunderstood its legislative history and misapplied the Court’s own prior decisions. It is not necessary in the view we take of the case to decide to what extent, if any, these contentions are correct. It is enough to say that if the Elgin case were before us as a case of first impression, its doctrine might not now be approved. But we do not write on a clean slate. What the Court has written before is but one of a series of events, which convinces us that its overruling or modification should be left to Congress. As the Court held on our last decision day, when the questions are of statutory construction, not of constitutional import, Congress can rectify our mistake, if such it was, or change its policy at any time, and in these circumstances reversal is not readily to be made. Massachusetts v. United States, 333 U.S. 611, decided April 19,1948. Moreover, in this case, unlike the cited one, Congress has considered the alleged mistake and decided not to change it. ” (Emphasis added.)

¶49333 US at 774-775, 68 S Ct at 870, 92 L Ed at 1081.

¶50The similarity in the situation presented by the case at bar and that above described is striking. The same rule should apply.

¶51Another court has recently come to a like result in a similar case, stating:

“The doctrine of stare decisis, weighty in any context, is especially so in matters of statutory construction. For in such cases Congress may cure any error made by the courts. Until it does, the bar and the public are justified in expecting the courts, except in the most egregious cases, neither to depart from previous interpretations of statutes, nor to give them a grudging application.”

¶52Cottrell v. C.I.R., 628 F2d 1127, 1131 (8th Cir 1980) (footnote omitted).

¶53Quite simply, the following situation obtains in the case at bar. This court interpreted the statute in Scharf. A concerned agency of the Executive Department sought to overturn that interpretation at the very next regular session of the legislature. The Legislative Department refused to amend the statute as requested. Now, due to a change in the personnel of this court, a new majority refuses to follow the rule of stare decisis in just the kind of case to which the rule is singularly pertinent, and the Judicial Department *818makes the change which the department of government charged with formulating statutory law has considered and refused to make. That course of action is both unwise and unseemly.

¶54dissenting.

¶55Less than two years ago, this court decided that when police officers unlawfully deny a driver’s request to telephone an attorney before choosing whether or not to submit to a breath test for intoxication, the results of such a test have not been obtained lawfully and cannot be used to convict the person of driving under the influence of intoxicants. State v. Scharf, 288 Or 451, 605 P2d 690 (1980). This was a decision under Oregon law, uncomplicated by constitutional problems. The decision could be changed by law, assuming the change to be otherwise constitutional. Today, this recent decision is overturned by a differently constituted plurality and one concurring opinion, although there has been no change in the law. Because the law remains what it was when Scharfwas decided, because the plurality opinion needlessly enmeshes the law in serious constitutional difficulties, and because it leaves the people of Oregon with a legal right without an evident legal remedy, I dissent.

¶56The court’s decision in State v. Scharf rested on two propositions. The first was that police officers do not have authority to prevent a person in custody from using an available telephone to call a lawyer (or for that matter, someone other than a lawyer), beyond what may be justified by the “immediate necessities of the arrest and the circumstances of custody itself.” 288 Or at 455. The court previously said as much in State v. Haynes, 288 Or 59, 602 P2d 272 (1979).1 It does not depart from that proposition *819today. The court reaffirms that it is unlawful for an officer to tell an arrested driver that he or she cannot make a telephone call until the driver first decides whether or not to submit to the breath test, as happened in this case.

¶57The second proposition in State v. Scharf was that the unlawful prevention of a telephone call for legal advice, followed by the driver’s uncounseled submission to the breath test, vitiates the use of the test results against the driver in a criminal prosecution. This result followed because the “implied consent” law, ORS 487.805, does not provide for the involuntary administration of a breath test to a protesting suspect. To the contrary, it contemplates that the arrested driver may refuse to take the test at the price of a 120-day suspension of his or her driver’s license. ORS 482.540(1). Moreover, this sanction depends on a prior explanation to the driver of the consequences of refusing the breath tést, to be established in an adjudication in which the adequacy of the explanation can be contested. ORS 487.805(2), ORS 482.550. The driver who is “requested,” ORS 487.805(2), not commanded, to submit to the test therefore has a genuine choice with potentially decisive importance to his liberty. When a driver seeks legal advice before making that choice and is unlawfully prevented from doing so, there is an improper interference with the driver’s choice to take or refuse the breath test. The court concluded that the use of a test resulting from such improper interference to obtain a criminal conviction does not square with the statutory scheme that allows an informed driver to refuse the test at the price of a license suspension.

¶58This conclusion in Scharfmade it unnecessary to reach any constitutional question, at least unless and until the legislature might change the law. The legislature has not done so, as Justice Lent’s dissent points out. Nevertheless, the new plurality now chooses to plunge the court into needless constitutional speculations that ultimately lead it to a wholly incongruous conclusion.

¶59Justice Tanzer’s opinion begins with a history of the so-called “implied consent statutes,” such as ORS 487.805, and its relationship to certain Supreme Court decisions. The sole object of this lengthy review is to argue *820that, although the statute directs the police to “request” a suspected driver to take the breath test, not to order or command the driver to do so, and although the statute permits the driver to refuse, nevertheless it does not leave him or her any choice. “Consent” and “refusal” are said not to be “antonyms.” With respect, that bit of verbal legerdemain flies in the face of a reality. Whether a refusal to submit to a breath test is a “refusal,” ORS 487.805(2), or a withdrawal of a fictitious “consent,” the effect is the same. The driver may choose not to submit to the test, and the test is not administered. The reason is not the driver’s use of any “physical power” to resist (291 Or at 793). To the contrary, the legislature chose to recognize the option to refuse in the statute itself.

¶60The question therefore is not what effect a wrongful refusal to let an arrested person make a telephone call would have if the officer were authorized to enforce a breath test or other examination in any event. But he has no such authority. An officer who sought to coerce submission to a breath test over the protests of a resisting suspect plainly would not be following this statute.2 Even the *821sanction of license suspension can be imposed only if the officer first explains this consequence of persisting in the refusal. Obviously the objective of the “implied consent” laws is use of the test rather than refusal and license suspension; that hardly needs lengthy demonstration. Nonetheless, the statute preserves the choice of refusal. To call this provision a “threat” cannot hide the fact that it openly and candidly leaves a genuine choice to a driver who is far more threatened by a criminal conviction on the evidence of a breath test.

¶61Part II of the opinion discusses a variety of constitutional limitations on the state’s authority to administer the breath test, which become relevant only because the new majority is determined to overturn State v. Scharf. In 11(C), the plurality launches into an essay on the political philosophy of liberty and the “Social Compact” in order to show that defendant’s right to call his lawyer derives from the 14th amendment of the United States Constitution. Whatever its merits as rhetoric, this section falls short as serious constitutional analysis.

¶62First, invocation of the federal 14th amendment for an arrested person’s right not to be held incommunicado suggests that Oregon law would deny such a right if it were not restrained by higher federal authority. That is simply false, State v. Scharf, supra, State v. Haynes, supra,and it is an unwarranted affront to the law of this state. Moreover, in the plurality’s own terms, if there was such a thing as a “Social Compact,” it found its expression when Oregon Recame a state in 1859,3 well before the Civil War and the post-war adoption of the 14th amendment in 1868. It is wholly inconsistent with that theory to imply that Oregon law would allow police to hold arrested persons incommunicado if there had been no Civil War and no 14th *822amendment to impose a “Social Compact” on us. Quite apart from such a theory, however, this court repeatedly has held that it is not necessary to turn to restraints imposed on this state by federal law in order to protect the rights of Oregon citizens that their own law preserves in any event.4 If, indeed the conclusion that officers may not deny outside communication to one taken into police custody needed a constitutional source, it is most pertinently implicit in the constitutional guarantee of habeas corpus. Or Const Art I, § 23.5

¶63Second, if the plurality is set upon its gratuitous essay into federal constitutional law, it should take its undertaking seriously. In questions of federal law, such as the 14th amendment, we follow the decisions of the United States Supreme Court, not our own views, as is constantly shown in the court’s treatment of fourth amendment claims. See, e.g., State *823v. Brown, 291 Or 642, 634 P2d 212 (1981). But the plurality makes no effort to determine what the Supreme Court has held or said bearing on the issue before us. Whatever the Supreme Court might hold in such a case, one thing is certain: Neither that court nor any court familiar with federal constitutional law would cite as the source of its “analysis” a quotation from a single justice dissenting from a dismissal of an appeal in a birth control case.6 The plurality’s quotation merely demonstrates the pitfalls of transferring large generalities from one area of law into a totally different one. I do not say that the Supreme Court would not hold that the 14th amendment protects an arrested person’s right to communicate with the “outside” world; I hope that the Court would so hold. But surely there are more relevant sources for understanding a person’s liberty not to be imprisoned incommunicado than to compare it with freedom to use contraceptives or to have an abortion. That is not a serious attempt to discern and to follow the federal law.

¶64Third, after finding a violation of due process of law, the plurality opinion incongruously holds that a conviction resulting from that violation nevertheless will not deprive Mr. Newton of liberty without due process of law. The opinion finds that it was a violation of due process to deny Newton his requested opportunity to telephone for legal advice. As I have said, this constitutional holding is unnecessary, though it may be correct. The opinion then asserts that there is no proof of a “causal connection” between this denial and Newton’s submission to the breath test, because the record does not show that he would have reached his lawyer or what advice the lawyer would have given him.

¶65*824The second part of that assertion is disingenuous; a court should assume that counsel would advise a client not to take the breath test unless he is certain of a negative result. Contrary to the plurality opinion, when the impropriety consists of interfering with a person’s access to counsel, we do not invite either the police or trial courts to “speculate” whether counsel might have been unavailable or might have advised cooperation with the police. Cf. State v. Haynes, supra.If the state wishes to assert that improper interference with access to counsel was harmless for such a reason, it must shoulder the burden of demonstrating that fact. But the fact is that in this case, as in Scharf, the officers did not prevent the telephone call to a lawyer because they thought it would be futile or immaterial to their investigation. To the contrary, they followed an official policy of preventing such calls precisely in order to forestall advice to decline the test. When the state adopts and enforces a policy of denying access to counsel for this very purpose, it is reasonable to assume that the denial has served that purpose unless the opposite is shown. It should also be obvious that the denial is designed to affect and does affect a critical stage in a criminal investigation, often the decisive stage.7

¶66*825The breath test evidence in this case was obtained by deliberate, official interference with Mr. Newton’s efforts to call a lawyer, thus obtained unlawfully and, in the plurality opinion, contrary to due process of law. Nevertheless, that opinion maintains that a conviction based on this violation of due process would not be a violation of due process. On its face such a position is an anomaly. The opinion attempts to explain away the anomaly by a further disquisition on “competing policy considerations” and an “empirical and pragmatic approach,” concluding that due process does not need to be enforced in this case because it is probably not needed in order to deter future official violations. The explanation does not resolve the obvious contradiction, it only deepens it. The person whose liberty is not to be taken without due process of law is the present defendant, Kenneth Ray Newton. The person who, according to the plurality opinion, was deprived of access to counsel without due process of law is the present defendant, Mr. Newton. It is Mr. Newton whom the state intends to convict upon a process of which a crucial part was not “due process.” Whether the total process is or is not due process with respect to Newton cannot logically depend on this court’s guess as to the future policies of the state police toward other motorists. That kind of “pragmatism” has recently become a fashionable way to “explain,” and perhaps to undermine, the Weeks8doctrine in federal search and seizure cases, as Justice Tanzer says, but I believe it has no proper place in assuring each individual brought before a court of due process of law. The state and federal constitutions do not make the individual person a mere instrument for judicial “policy considerations,” to be protected when a court thinks this will usefully influence official conduct and not protected when a court thinks that it will not. They do not invite courts to manipulate due process for the individual only as a means to some other end. Such an approach makes a mockery of a guarantee that government shall not deprive any person of life, liberty, or property without due process of law. US Const Amend V, Amend XIV.

¶67Finally, the prevailing opinions in this case maintain a discreet silence on the question what remedy is available *826to Mr. Newton, or to others who despite the Court’s hopes may find themselves in his position. The truth is that the only relevant remedy for what the Court agrees was an unlawful, perhaps even unconstitutional, procedure is a trial untainted by that procedure. An arrested person whose request to telephone for help or counsel is wrongfully refused ordinarily is not a victim of physical or psychological mistreatment. His or her interest is not in punishing an officer who may only have followed erroneous instructions and otherwise have been wholly inoffensive. Nor is it in being made whole for a financial injury. The interest that is injured by the refusal is the arrested person’s interest in his or her legal rights when in police custody, and the injury directly threatened by the wrongful refusal is loss of liberty. One may ask what remedy the Court expects the next person to seek who learns after the fact that an officer’s refusal of a request to call counsel was unlawful. The one remedy that addresses the very interest which the telephone call could protect is to remove the fruits of the unlawful refusal from the prosecution. If that is denied, no similarly relevant remedy is evident, and the Court mentions none.

¶68To sum up: Oregon law does not provide for subjecting an arrested motorist to a breath test over the motorist’s objection. The law provides that the motorist may refuse the test, with legal consequences for his or her license to drive. When an arrested motorist requests to use an available telephone to obtain advice whether to take or refuse the test, the request may not lawfully be denied, as the Court reaffirms in this case.

¶69Given these premises, State v. Scharf held that when such a request to telephone one’s lawyer for advice was wrongfully denied, breath test results thereafter obtained from the arrested person could not be used in prosecuting that person. This inference drawn from the statutory recognition of the arrested person’s choice to refuse the test was not unanimous, but the disagreement remained a simple and straightforward question of Oregon law which could be addressed by the legislature if it wished. The legislature did not change the law, although it reexamined and amended the statutes governing driving under the influence of intoxicants.

¶70*827Instead we now have a long and tortured opinion which seeks to explain that the reason why Oregon lets arrested persons use the telephone is that the federal 14th amendment compels Oregon to do so, that the refusal of permission to make the call in this case was a violation of due process under that amendment, and that nevertheless it is no violation of due process to prosecute this defendant on evidence obtained in apparent consequence of that refusal. Although that constitutional analysis does not command a majority of the court, its proposed shift of direction from Scharfis cause for regret.

¶71We are dealing, not with convicted and imprisoned offenders, nor only with drivers suspected of intoxication. We are dealing with the rights of ordinary men and women who have been placed under arrest for an alleged traffic offense or any other reason and detained from proceeding toward their intended and expected destinations, whose unexplained disappearance can cause serious concern for others as well as inconvenience and trouble for themselves. A number of consequences no doubt are implicit in statutory authority to take a person into custody, but authority to prevent him or her from communicating with the outside world, particularly from seeking to obtain legal counsel, is not one of them.

¶72Whether motorists are left the choice to refuse breath tests for intoxication perhaps is not of fundamental importance. An arrested person’s access to outside advice, particularly legal advice on a critical choice while in custody for potential prosecution, is of fundamental importance. A view that interference with such access would not be unauthorized in Oregon but for federally imposed restraints carries ominous implications beyond the details of the “implied consent” statutes. I would adhere to our previous decision under the same statutes until they are changed.