dissenting.
Five years have passed since the Supreme Court held in State v. Newton, 291 Or 788, 636 P2d 383 (1981), that police refusal to permit an arrestee to call his attorney is an unlawful restriction on personal liberty, unless the refusal is reasonably required for the police to perform their duties. As the majority *365concedes, no explanation for the refusal was given here. 82 Or App at 362.
The court in Newton declined to suppress the results of the breathalyzer test for two reasons. First, there was no evidence that the defendant had a lawyer or that one was available. Here, as the majority concedes, there is such evidence. Second, suppression was not required, because the defendant had not been denied a constitutional right; there was only an unauthorized restriction of defendant’s freedom to call counsel. Nevertheless, the court stated:
“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 [v. Ohio, 367 US 643, 81 S Ct 1684, 6 L Ed 2d 1081 (1961)] and Justice Goodwin warned in [State v.] Shipley, [232 Or 354, 375 P2d 237 (1962)], we may consider resort to the exclusionary rule as a necessary means to deter future violations.”
The warning in State v. Shipley, supra, to which the court referred, is:
“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.
It is apparent that the court’s clarification of the law and its warning have not been sufficient to deter all of those charged with enforcing the law from the unauthorized restriction of an arrestee’s freedom to call counsel. Five years is long enough to achieve compliance. Accordingly, we should not shrink from our duty to suppress the evidence. The majority would leave it to the Supreme Court. I would take the court at its word and do what apparently is necessary to effect compliance.
Although I agree with the majority’s disposition of the other issues presented, I would not reach them, because I would affirm the trial court’s suppression of the breathalyzer test results for the reason urged in the cross-appeal. Therefore, I dissent.