dissenting.
In Holte v. State Highway Commissioner, 436 N.W.2d 250 (N.D.1989), the majority, disregarding the facts that made the issue of exclusion in that case moot, decided the issue anyway, holding that the exclusionary rule does not apply in civil license-suspension proceedings. That advisory opinion is now cited as the law of our state. I joined Justice Meschke’s dissent in Holte, and I again dissent.
The majority in Holte and the majority in this case, severely limit our holding in Kuntz v. State Highway Commissioner, 405 N.W.2d 285 (N.D.1987), that NDCC § 29-05-20 entitles a person arrested for DUI to a reasonable opportunity to consult with an attorney before deciding whether to take the Intoxilyzer test. See also Bickler v. North Dakota State Highway Com’r, 423 N.W.2d 146 (N.D.1988). They also entirely denigrate North Dakota’s traditional reverence for the right to counsel. See State v. Orr, 375 N.W.2d 171 (N.D.1985). Holte was ill-advised and premature. Instead, we should apply the exclusionary rule in this case and follow the lead of the Alaska Supreme Court which held that the result of a test secured in violation of the right to counsel should be excluded in a civil license-revocation proceeding. Whisenhunt v. Department of Public Safety, 746 P.2d 1298 (Alaska 1987). Accord Prideaux v. State Dept. of Public Safety, 310 Minn. 405, 247 N.W.2d 385 (1976); Gooch v. Spradling, 523 S.W.2d 861 (Mo.Ct.App.1975); Price v. North Carolina Dept. of Motor Vehicles, 36 N.C.App. 698, 245 S.E.2d 518 (1978). Such a holding would ensure the integrity of administrative and judicial proceedings as well as deter the police misconduct that occurred in this case.
Our statute supports the exclusion of test results resulting from a violation of the right to counsel. Section 39-20-07(5), NDCC, makes the test results admissible only when “it is shown that the sample was properly obtained and the test was fairly administered_” Here, Fasching repeatedly requested to speak to her attorney before the test was administered. The sheriff, however, took it upon himself to adduce why she wanted to speak to her attorney and then, quite remarkably in my view, adjudged that her reasons were not acceptable. That is preposterous. It was none of the sheriff’s concern why Fasching wished to speak to her attorney. She was entitled to consult with her attorney under § 29-05-20 without explaining her reasons and certainly without the sheriff's veto. Having been deprived of her right to counsel, how can it be said that the test was either “properly obtained” or “fairly administered”? Indeed, the stench of impropriety and unfairness is rank.
Under our holding in Kuntz, once Fasch-ing expressed her desire to consult with *327counsel, she should not have been subjected to the Intoxilyzer test until she was given reasonable opportunity to consult. Cf. Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) [a suspect who has expressed desire to consult with counsel is not to be subjected to further police interrogation until counsel has been made available; Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988) [applying Edwards v. Arizona rule to police interrogation of accused about offense unrelated to the subject of the initial police interrogation during which accused has requested counsel]. Having been deprived of her opportunity to consult counsel, Fasching should not be held to her uncounselled decision to take the test.
I agree with the Minnesota Supreme Court’s rationale for exclusion of test results to accomplish the objective of fair treatment:
“When the driver has been coerced into making a complicated decision without the assistance of counsel required by this opinion, he should not be bound by that decision, since he might have otherwise made it differently.” Prideaux v. State Dept. of Public Safety, 247 N.W.2d at 395.
I would affirm Judge Schneider’s decision reversing the administrative license suspension.
MESCHKE, J., concurs.