dissenting.
Because I disagree with the majority’s conclusion that respondent was afforded a reasonable opportunity to contact and consult with counsel, I dissent.
After Walls had been placed under arrest at the scene of the stop, he was taken to the Central Precinct and placed in a holding cell. Before Officer Janzen brought him out for questioning, Walls had been handcuffed because, Janzen explained, it was a “personal policy” that he followed at times because he had been injured in the past. He testified that “it’s just a safety thing.” He did not say that he had any reason to believe that Walls presented a danger to him or to anyone, and there is no evidence that he did.
As a result, when Walls said that he wanted to talk to an attorney before agreeing to take a breath test, he was unable to use the telephone directory himself to find his attorney’s number. He had to rely on the officer not only to find the number, but also to dial it, and, more importantly, hold the telephone to his mouth and ear. As it turned out, when the officer dialed the attorney’s number, he got an “answering machine.” Walls then gave Janzen the name of another attorney, but the officer said he “couldn’t find a listing for it or it was another office number.”
Walls was not permitted to use the telephone directory or the telephone. However, he still wanted to attempt to get an attorney, so he asked Janzen to dial his girlfriend’s number, which Janzen did. Janzen held the telephone to Wall’s ear because he was in handcuffs. Walls asked her to find a home number for his attorney because he wanted to *110talk to him before he decided whether to submit to the breath test. She called back to say that she had been unable to contact the attorney. Walls then asked her to contact any attorney.
About 25 minutes had expired from the time Walls said that he wanted to talk to an attorney and the time he asked his friend to get any attorney. At that point, Janzen presented Walls with an ultimatum: he would have to decide on his own whether to submit to the breath test, even though Walls had asked his friend to continue her effort to contact any attorney. Walls said that he would not take the test. He was then taken to a holding cell. Shortly thereafter, an attorney who had been contacted by Walls’ girlfriend called and asked to talk to Walls. The attorney was told that it was too late, because Walls had already refused to take the test and was “on his way to the booking area.”
The record shows that many lawyers listed in the yellow pages of the telephone directory advertise that they are available 24 hours. However, Walls was not permitted to use the directory; he had to depend on Janzen. As a result, more time was spent trying to reach an attorney than would have been spent if Walls had had direct access to the directory and the telephone.
We have held that the right to consult with counsel in a DUII setting includes the right to a private consultation. In State v. Penrod, 133 Or App 454, 456, 892 P2d 729 (1995), the defendant was arrested after refusing to perform field sobriety tests. She was taken to the police station, where she was given Miranda warnings. She then asked to speak with her attorney. The officer dialed the number and handed her the telephone. The attorney asked to speak to the officer. He asked the officer to leave the room so that the defendant could have a private conversation with him. The officer said that he could not do that, handed the telephone back to the defendant and remained within a few feet of her while she talked with her attorney. When she was through, she refused to take the breath test, and was convicted. On appeal, we reversed her conviction:1
*111“We believe that confidentiality is inherent in the right to consult with counsel; to hold otherwise would effectively render the right meaningless.” Id. at 457.
Walls was never given that opportunity. In order to use the telephone, it was not only necessary for Janzen to be right next to him, holding the telephone against his ear and mouth, but Walls was required to depend on Janzen’s use of the telephone directory. There is no way of knowing what would have occurred if Walls had been permitted to use the telephone directory and telephone without the interference by Janzen. However, it is apparent that the way in which Janzen handled this matter required an excessive amount of time and interfered with Walls’ right to consult with counsel.
Accordingly, I would hold that Walls sustained his burden to show that his opportunity to consult with counsel was unreasonably restricted, see Ranger v. MVD, 122 Or App 141, 144, 856 P2d 1050 (1993), and would affirm.
Although Penrod was a criminal DUII case, there is no reason to treat this administrative case differently. In that case, as well as this case, the issue arose before it was known whether a proceeding would be brought to suspend Penrod’s *111license or whether a criminal action would be filed. The majority suggests that a different rule applies in an administrative proceeding because Article I, section 11, does not apply. 154 Or App at 108 n 4. However, the right to consult with counsel does apply in the administrative context. Moore v. Motor Vehicles Division, 293 Or 715, 719, 652 P2d 794 (1982).