dissenting.
The majority states:
“In any event, the hearings officer concluded that, given the requirements of the testing procedure, the officer properly declined to allow respondent’s request. Respondent did not effectively contest that conclusion other than by asserting the opposite.” 104 Or App at 16.
The hearings officer, however, made no findings of fact respecting whether the police justifiably denied respondent’s request for a confidential telephone conversation with his attorney. The hearings officer, without making the necessary findings, concluded that “to require an officer to allow a person a private conversation with his attorney would undermine the testing procedure.”
We addressed the lack of necessary findings in Gildroy v. MVD, 100 Or App 538, 786 P2d 757, mod 102 Or App 138, 793 P2d 332 (1990). The respondent was arrested for *17DUII. At the police station, the police asked him to take a breath test. He asked to call his attorney. While he was talking on the telephone to his attorney, an officer stood by his side, observed him and interrupted the conversation. After he had finished talking with his attorney, he took the test. The hearings officer held that he did not have a right to “an unobserved conference with the attorney” and ordered his license suspended, but he made no findings.
The circuit court reversed the suspension order, and MVD appealed. Among other things, the respondent argued that Article I, section 11, guarantees that, in an administrative proceeding to suspend his license, a driver who has been arrested for DUII has a right to a “meaningful conversation” with an attorney before submitting to a breath test. See State v. Spencer, 305 Or 59, 750 P2d 147 (1988). We reversed and remanded to the circuit court, because it “made no decision on this issue.” 100 Or App at 542. On reconsideration, we said:
“Whether respondent was denied a meaningful conversation with his attorney under Article I, section 11, will depend on the extent of the officer’s interference, if any, with respondent’s telephone conversation with his attorney, in the light of the need for effective administration of the breathalyzer test. See Luth v. Motor Vehicles Division, 87 Or App 137, 142, 741 P2d 897 (1987). We erred by remanding to the circuit court. We modify our former opinion to remand to the MVD for further proceedings. See ORS 813.450(5); Shakerin v. MVD, 101 Or App 357, 790 P2d 1180 (1990).” 102 Or App at 142.
Here, the majority correctly observes that, if the arrested driver is unjustifiably denied the right to contact counsel under Article I, section 11, refusal to take the test is not cause for suspension of driving privileges. The hearings officer, however, made no findings as to whether the police had deprived respondent of a reasonable opportunity to consult with his attorney. Under Gildroy v. MVD, supra, a hearings officer must make findings on the extent of the interference, if any, with a driver’s opportunity for a meaningful telephone conversation with his attorney in the light of the need for effective administration of the breath test and secure custody. I would reverse and remand to MVD for further proceedings.
The majority, citing ORS 183.450(2) also says that *18respondent had the burden of presenting evidence to establish that the police could accommodate his request. All that ORS 183.450(2) states is:
“The burden of presenting evidence to support a fact or proposition in a contested case rests on the proponent of the fact or position.”
Respondent carried his initial burden to present evidence that the police denied him an opportunity for a meaningful conversation with his attorney. Contrary to the majority’s analysis of the evidence, respondent showed that, after his arrest, he timely requested an opportunity to talk on the telephone with his attorney. His attorney was reached on the telephone and was prepared to advise him. The attorney asked Reuter for an opportunity to talk on the telephone with respondent in confidence. Reuter replied that that “would not be possible” but did not explain why. Reuter listened to respondent’s end of the telephone conversation with the attorney, who aborted the conversation because it was not confidential and advised respondent to refuse to take the test. The attorney had handled numerous cases involving arrestees in the Clackamas County jail. He testified that it was his opinion that he could not have a meaningful conversation if Reuter was listening to respondent’s end of the conversation. Respondent declined to take the test.
MVD could then have presented evidence to show why the police could not have accommodated respondent’s request. It did not. Indeed, it appears that the record contains no substantial evidence that would support the necessary, but absent, findings. As I have stated, the case should be reversed and remanded to MVD for further proceedings.