dissenting.
Defendant’s lawyer in this case testified that had he been able to confer privately with defendant he would have found out how much defendant had drunk so that he could determine whether taking the breath test would be advisable. That is surely sensible because the defense of a drunk driving case is substantially easier when incriminatory blood alcohol readings are not present. It is understandable also why defendant wished legal advice because of his uncertainty as to which course of action, taking or refusing to take the breath test, was most advantageous to him. Given the utility of the advice and the requirement of Rule 6.1, Rules of Criminal Procedure, 17 A.R.S., that a-defendant be allowed to consult privately with his lawyer “as soon as feasible” after arrest, it is plausible to hold that the defendant was denied his right to a lawyer’s assistance in this case.
The problem with this analysis is that it flies squarely in the face of the holding in Campbell v. Superior Court, 106 Ariz. 542, 550, 479 P.2d 685, 693 (1971), that a person is “not entitled to the assistance of counsel in deciding whether or not to submit to the breathalyzer test.” All that was allegedly denied in this case was the right of consultation concerning whether to submit. There being no such right under Campbell, defendant is not entitled to relief. A right is not created because a lawyer is on the phone. Its existence turns on whether the assistance that could be provided is within the constitutional concept of assistance of counsel. Campbell held that the assistance denied here was not within that concept, and until our supreme court overturns that decision, we are bound by it.
The theory underlying Campbell is that one arrested on probable cause for driving while intoxicated has neither a Fourth nor Fifth Amendment right to refuse to submit to a breath test. South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983); Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). He is legally obligated to take the test although he has the physical power to refuse.1 As Campbell noted, therefore, there can be no right to counsel because there is no way in which an attorney can legitimately assist his client. Former DR 7-102(A)(7), Former Rule 29(a), Rules of the Supreme Court, 17A A.R.S., provided *467that a lawyer should not “counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent.” Present ER 1.2(d), Rule 42, Rules of the Supreme Court, provides that “a lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client____” These strictures, along with the rules regarding disclosure of evidence, Former DR 7-102(A)(3), Present ER 3.4(a), seem to me to forbid a lawyer to counsel his client not to take the legally required breath test. To me such counsel is no different than telling a client not to respond to a subpoena duces tecum or not to testify because the case would go better if the opposing side did not have the evidence they were legally entitled to. If I am wrong, and the role of the lawyer is to counsel disobedience, a clearer statement of that obligation is needed than has yet been forthcoming from our supreme court. And, of course, if that is part of the constitutionally mandated assistance of counsel, Campbell must be overturned because all arrested drunks must have the benefit of that advice at this “critical stage” of the proceedings. I recognize that no “lawyer worth his salt,” Watts v. Indiana, 338 U.S. 49, 59, 69 S.Ct. 1347, 1358, 93 L.Ed. 1801, 1809 (1949), wishes to be powerless to prevent the revelation of damaging information. But neither constitutional rules, court rules, nor statutes ought to be construed to comfort lawyers at the expense of proper resolutuion of issues of more pressing public concern.
The majority seeks to avoid this result by pointing to language in McNutt v. Superior Court, 133 Ariz. 7, 648 P.2d 122 (1982), that can be read as limiting Campbell to those instances in which consultations with counsel will so delay the test as to imperil its validity. That risk is obviously not present in this case where counsel was conversing with his client at the time private consultation was denied. There are two problems with this analysis. First, McNutt restated the Campbell rule and held only that consultation must be permitted immediately after the taking of or refusal to take, the breath test.2 It is difficult to find a by-implication-holding in this that the accused must be allowed to consult with an attorney if such consultation will not unreasonably delay the taking of a breath test. Second, in dealing with the right to consult with counsel we deal with a constitutional right. Constitutional rights are not limited by the awkwardness their exercise may create for law enforcement authorities. If there is a right to consult with counsel, it must be given to all accused regardless of how great the practical burden thus created.
It is possible to avoid this by saying that the language of Rule 6.1 creates a non-constitutional right to consultation. The committee comment accompanying the rule, however, shows that the rule was drafted in order to meet constitutional mandates. Before construing the rule to allow consultation, we should pause to consider the difficulties that may be created. How is the officer to know how long he must delay the test before concluding that consultation is not feasible? How great will be the burden on law enforcement to attempt to reach lawyers on behalf of arrested drunk drivers? Does this right of consultation extend only to those fortunate enough to know a lawyer they may call? If so, is this a right reserved to the more affluent members of our society? If not, must counsel be made available to those without means of reaching a lawyer? Could all interests be served by mandating a warning3 that *468taking the test when really drunk results both in loss of license and conviction while refusing the test results in loss of license but a fighting chance to avoid conviction? Should those arrested be furnished a table showing probable blood alcohol levels given different consumption levels? These are questions better addressed by a committee drafting rules after inquiry into the practical effect of a particular rule than by a court expanding language drafted for one purpose to encompass other purposes.
Because I believe, on the authority of Campbell, that no constitutional right of consultation was denied and because I believe that Rule 6.1, as drafted, ought not be construed to create a non-constitutional right of consultation in this circumstance, I dissent.
. Despite express language to this effect in Campbell, counsel testified that taking the test was not required and that he frequently counseled against it. The wish is father to the thought.
. The majority suggests that McNutt was violated because there are passing references to the loss of exculpatory evidence in the record. A fair reading of the record, however, reflects that no such claim is being made. Rather, defense counsel was asserting that there was a right to consult with an attorney prior to taking the test. This is reinforced by tbe attorney’s business card, see note 3, infra, which expressly asserted that right.
. Such quasi -Miranda warnings could be added to the business card of defendant’s lawyer, a card that defendant was carrying on the night of his arrest. That card read:
*468TELEPHONE
253-0506 (24 hours)
PEYTON A. KERR III
ATTORNEY AT LAW
SUITE 622 LUHRS BUILDING
II WEST JEFFERSON
PHOENIX, ARIZONA 85003
NOTICE OF INVOCATION OF RIGHT TO REMAIN SILENT, REQUEST TO CONSULT WITH ATTORNEY BY MEANS OF A CONFIDENTIAL TELEPHONE CALL DURING WAITING PERIOD PRIOR TO ADMINISTRATION OF BREATH TEST, REFUSAL TO PERFORM PHYSICAL DEXTERITY TESTS, AND REQUEST FOR PRODUCTION AND PRESERVATION OF POTENTIALLY EXCULPATORY EVIDENCE.
(1) I understand that I have the right to remain silent and I hereby invoke this right and expressly refuse to answer any questions. I also understand that I have the right to consult with an attorney and I hereby request to be permitted to make a confidential telephone call to my attorney during the waiting period prior to being administered a breath test to determine the alcoholic content of my blood.
(2) I understand that I have the right to refuse to perform any physical dexterity tests, and I hereby expressly refuse to perform any such tests. I also object to either a pupil light reaction test being performed upon me or a bright light being shown in my eyes.
(3) If I am arrested and charged with the offense of operating or being in actual physical control of a motor vehicle while under the influence of intoxicating liquor, then I request the production and preservation (in accordance with Rule 28.2, Arizona Rules of Criminal Procedure) of the following potentially exculpatory evidence and I agree to pay all reasonable costs that may be assessed against me as a result of compliance herewith:
(a) The test ampoule and mouth piece if I am administered a breath test on the "Breathalyzer1 23' instrument.
(b) If I am administered a breath test then regardless of what type of instrument is used. I request that the administration of the test be videotaped and that a sample of my breath be collected, preserved and furnished to me for independent testing.
(4) I understand that I have the right to be released from custody at the conclusion of your investigation in order to have a blood sample taken for independent testing. I hereby request to be released from custody upon signing my written promise to appear in court on any charges that may be filed against me in order to obtain a sample of my blood taken shortly after my arrest.
(5) I request that my arresting officer sign and date this form where indicated, impound a copy of this form for evidence in this case, and return the original of this form to the undersigned person at the time of his release from custody.
NAME
ARRESTING OFFICER
DATÉ TÍME"
The assertion of the right to consult an attorney before the breath test is, of course, squarely contradicted by Campbell.