(dissenting). The majority holds that “the statutory right to legal consultation applies when an attorney contacts the police before a chemical test for alcohol is performed and the police must alert the subject to the presence of counsel, whether the contact is made in person or telephonically” (majority op at 233). Further, the majority opines, it makes no difference “that defendant consented to the breathalyzer about the same time[*] that the attorney was communicating with the police . . . since [she] . . . could have revoked her consent prior to administration of the test” (id.).
Contrary to the majority’s view, no statute confers upon a suspected drunk driver the legal right to consult with counsel before consenting to take a chemical breath test. And the ma*235jority offers no reason why we should alter the easy-to-apply common-law rule deriving from People v Gursey (22 NY2d 224 [1968]); i.e.; that “a defendant who has been arrested for driving while intoxicated, but not yet formally charged in court, generally has the right to consult with a lawyer before deciding whether to consent to a sobriety test, if he requests assistance of counsel” (People v Shaw, 72 NY2d 1032, 1033-1034 [1988] [emphases added], citing Gursey, 22 NY2d 224). Accordingly, I respectfully dissent.
I.
In Gursey, a motorist suspected of drunk driving was taken back to the station house where he was asked to submit to a chemical breath test; he refused and several times requested permission to call his attorney. The police officer in charge advised the uncooperative motorist that he had to take the test. When the motorist questioned what would happen if he continued to refuse consent, the officer replied “ ‘[T]he State will take away your license,’ ” whereupon the motorist submitted to the test (id. at 227).
The motorist unsuccessfully moved to suppress the test results on the ground that administration of the test after denial of his requests for counsel violated his Fifth and Sixth Amendment rights. He was subsequently convicted of driving while intoxicated. On appeal, the Appellate Term ruled that “the denial of [the motorist’s] request to telephone his attorney before he took the test violated his constitutional rights” (id. at 227 [internal quotation marks omitted]). The court therefore reversed the judgment of conviction and ordered a new trial in light of the “sufficient other evidence” of guilt (id. at 226).
We affirmed, but not on the basis of any constitutional or statutory right to advice of counsel enjoyed by a suspected drunk driver asked to undergo chemical breath testing. We noted that the motorist “possessed a number of statutory options which could be asserted only during the transaction at the station house, and concerning which the advice of counsel, if available, was relevant” (id. at 228 [emphases added]); specifically, he might have chosen to lose his license in lieu of taking the test (see former Vehicle and Traffic Law § 1194 [1]). Further, the motorist, if he elected to take the test, was entitled to have a physician of his choosing conduct a chemical test in addition to the police-administered one (see former Vehicle and Traffic Law § 1194 [4]).
Observing additionally that honoring the motorist’s wishes “would not have substantially interfered with the investigative *236procedure,” we held that denial of his requests to talk to his lawyer “must be deemed to have violated” what we called “his privilege of access to counsel” (id. at 228) or “[t]he privilege of consulting with counsel concerning the exercise of legal rights” under Vehicle and Traffic Law § 1194 (id. at 229). We subsequently confirmed that this privilege is triggered only “if [a motorist] requests assistance of counsel” and does so “before deciding whether to consent to a sobriety test” (Shaw, 72 NY2d at 1034 [emphases added]). We have recently reiterated that the privilege is invoked “before responding to a request to take a chemical test” (People v Smith, 18 NY3d 544, 549 [2012] [emphasis added]).
II.
While section 1194 contemplates that a motorist may refuse to take a chemical breath test, there is no “statutory right to request legal consultation before consenting to a chemical test” administered pursuant to that provision (see majority op at 230; see also id. at 233). The limited privilege to consult derives solely from Gursey and so is entirely judge-made (see Gursey, 22 NY2d 224; see also Smith, 18 NY3d at 549 [“Vehicle and Traffic Law § 1194 does not address whether a motorist has a right to consult with a lawyer prior to determining whether to consent to chemical testing. However, if the motorist is arrested for driving while intoxicated or a related offense, this Court has recognized a limited right to counsel associated with the criminal proceeding”]).
As the majority acknowledges, “[d]riving while intoxicated is a very serious crime that has long posed a menace to highway safety and has caused many tragic consequences” (majority op at 231 [internal quotation marks and citations omitted]). Here, defendant struck and killed a pedestrian. Given the undeniable scourge of drunk driving, we should not extend the reach of Gursey’s judicially-created privilege absent strong competing reasons of public policy, and none are advanced or apparent.
Additionally, expansion of the Gursey privilege is particularly ill-advised since the legislature enacted the “ ‘right’ of refused . . . merely [as] an accommodation to avoid a distasteful struggle to forcibly” administer a chemical test to an unwilling subject, not to protect drunk driving suspects from the risk of supplying incriminating evidence (People v Paddock, 29 NY2d 504, 506 [1971, Jasen, J., concurring]; see also Jack B. Weinstein, Statute Compelling Submission to a Chemical Test for *237Intoxication, 45 J Crim L Criminology & Police Sci 541, 543 [1954-1955], available at http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=4303&context=jclc [noting the “sound practical reasons” for the legislature’s decision to provide that “although the driver has constructively consented to take the test, when the chips are down and he is actually apprehended he may renege on his imputed promise and refuse . . . (although) (s)uch a refusal is costly for it will result in the loss of his driver’s license or nonresident operating privilege”]).
The majority seemingly reasons that it should make no difference whether the motorist asks to speak to the lawyer or vice versa before the test is performed. As a practical matter, though, the majority’s enlargement of the Gursey privilege invites debate and thus uncertainty, especially when the attorney telephones rather than physically appears at the police station. In short, we are trading a limited and clear rule for a broader one bound to complicate and delay time-sensitive testing and generate questions of fact anytime an attorney enters a case, even when the defendant has already agreed to take the chemical test. This is evident here where, by any measure, mere minutes separate the attorney’s first contact with the police from defendant’s consent to the chemical breath test and the actual testing.
And even assuming it made sense to extend Gursey, there is no reason why the privilege should attach so long as the attorney asks to speak to the motorist before the chemical test is administered, as the majority holds, rather than before the motorist consents. The rationale for the privilege in Gursey was that counsel’s advice was relevant to the motorist’s decision whether to consent to the test in the first place. The majority posits that defendant might have revoked consent after talking to her attorney, citing Vehicle and Traffic Law §§ 1194 (2) (b) and 1194-a (3) (c). But these provisions address consequences of refusal to undergo a chemical test, not revocation of consent once freely given, as it concededly was here. Moreover, the majority does not explain why defendant’s consent did not act as a waiver of any Gursey privilege. We have, after all, held that a motorist’s statutory option to refuse a chemical test “may be waived without an attorney’s assistance” (Shaw, 72 NY2d at 1033).
III.
In Gursey, we created a limited privilege for a motorist suspected of drunk driving to request to consult with counsel *238before consenting to chemical testing. Expanding this privilege to cover the situation where the motorist has not asked for counsel or resisted testing disserves the legislative purpose animating section 1194 (2) (b); namely, to encourage voluntary participation in chemical testing, a measure shown to have “cut drunken driving drastically” (see Letter from Jack B. Weinstein, Counsel to NY Senate, to George M. Shapiro, Counsel to Governor, Mar. 26, 1953, Bill Jacket, L 1953, ch 854 at 35-36).
Chief Judge Lippman and Judges Pigott and Rivera concur with Judge Graffeo; Judge Read dissents in an opinion in which Judges Smith and Abdus-Salaam concur.Order affirmed.
*. Record evidence shows the following: defendant signed the testing authorization form at 3:30 a.m.; the attorney called directory assistance at 3:27 a.m. (the call lasted one minute and 12 seconds); he called the sheriffs department at 3:29 a.m. (the call lasted 15 seconds); he called directory assistance again at 3:30 a.m., and at 3:31 a.m., he spoke to the switchboard operator at police headquarters, and at 3:32 a.m., his call was transferred to a police sergeant; the call lasted nine minutes and two seconds (i.e., beginning with the call to directory assistance at 3:30 a.m. and ending at 3:39 a.m.); and defendant’s breath was “withdrawn” at 3:39 a.m.