Kevin Jones appeals a judgment of contempt under which he received a sentence of six months incarceration. He argues that the court erred by not advising him of his right to counsel and by not making findings to support the contempt conclusion or the enhanced penalty. We reverse and remand.
Appellant was subpoenaed to. testify for the state in the criminal trial of Loretta Rogers. He appeared at the proceedings accompanied by an attorney who had represented him in a sentencing matter earlier that day. The attorney told the court that he was not representing him but was merely accompanying him as a courtesy. The attorney said that he had talked to appellant about his testifying and that appellant did not want to testify, because he was afraid that he might incriminate himself. The lawyer added that he had explained to appellant that he would not be questioned about events that might prove incriminating. The lawyer did not participate any further. The court questioned appellant about his reasons for declining to testify and, after concluding that he had no constitutional right to refuse to téstify, warned him that if he did not testify, he would be held in contempt and imprisoned. After a recess in the criminal case, appellant was again advised by the court of the possibility of contempt and asked if he would testify. Appellant said he did not understand, but would not testify. The court held him in contempt and imposed a sentence of six months.
Appellant first argues that the court erred by not advising him of his right to counsel. Implicit in that contention is that he was also entitled to appointed counsel. ORS 33.095(2) provides, in relevant part:
“If the alleged contemnor is not represented by counsel when coming before the court, the court shall inform the alleged contemnor of the right to counsel, and of the right to appointed counsel if the alleged contemnor is indigent and the proceedings may result in any incarceration.”
That provision applies when an alleged contemnor appears without counsel and has a right to counsel. Although appellant was accompanied by an attorney when he first appeared, the attorney did not represent him during the contempt proceeding. In fact, the attorney left shortly after arriving and was not present when the court examined appellant regarding his *427refusal to testify. Under these facts, it cannot be said that he was represented by counsel during the contempt proceeding.
Under ORS 136.617, an alleged contemnor has a right to counsel when he refuses to testify on the basis of a fear of self-incrimination.1 State ex rel Spencer v. Howe, 281 Or 599, 602, n 1, 576 P2d 4 (1978). Accordingly, when a court exercises the authority to hold a witness in contempt for refusing to testify, the witness is entitled to counsel, if the refusal is based on a fear of self-incrimination. It follows that, under those circumstances, a courtis obligated by ORS 33.095(2) to advise the alleged contemnor of his right to counsel and to appointed counsel, if he is indigent.
The state contends that appellant did not have a right to counsel under ORS 136.617, because his refusal to testify was not based on the fear of self-incrimination. It argues that appellant’s
“refusal to testify was based on his forgiveness of the person who allegedly shot at him. His refusal was not based on a claim of privilege. Once he understood that he had no right to claim a Fifth Amendment privilege * * *, he no longer ever mentioned the Fifth Amendment but relied instead on forgiveness.”
That conclusion rests, however, on facts that the trial court learned by questioning appellant after he had asserted his refusal to testify based on the Fifth Amendment. The right to avoid self-incrimination is an essential right that is recognized under both the federal and state constitutions. US Const Amend V; Or Const Art I, § 12. The right to counsel afforded by ORS 136.617 is an implicit recognition that proper assertion and presentation of appropriate facts to establish the privilege not to testify can be complex. The right to assistance guaranteed by ORS 136.617 would be hollow if it attached only *428after the court, and presumably the prosecutor, had examined the witness about his assertion of a constitutional right to refuse to testify.
When appellant first indicated that he would refuse to testify on “Fifth Amendment grounds,” he had a right to counsel under ORS 136.617. Because he was not represented by counsel, the court was obligated, under ORS 33.095(2), to advise him of this right and to appoint counsel if he was indigent. It did not, and he is, therefore, entitled to a new hearing. Van Eck and Van Eck, 95 Or App 13, 16, 767 P2d 464 (1989).2
Reversed and remanded.
ORS 136.617 provides, in pertinent part:
“In any criminal proceeding before a court of record * * * if a witness refuses to testify or produce evidence of any kind on the ground that the witness may be incriminated thereby, the prosecuting attorney may move the court to order the witness to testify or produce evidence. The court shall forthwith hold a summary hearing at which the prosecuting attorney shall show reasonable cause to believe the witness possesses knowledge relevant to the proceeding, or that no privilege protects the evidence sought to be produced. The witness may show cause why the witness should not be compelled to testify or produce evidence. * * * The witness shall be entitled to be represented by counsel at the summary hearing.”
Because we reverse the order, we need not review appellant’s remaining challenges to the court’s findings.