dissenting.
The majority holds that the informed consent statute requires that a person requested to take a breathalyzer test be given the opportunity to obtain the advice of counsel before deciding whether to take the test. The statute does not expressly so require. In my opinion the statute impliedly does not so require; the most reasonable interpretation of the statute is exactly to the contrary.
The first Oregon law relating to testing those arrested for drunken driving provided that the officer could not test the arrested person if such person objected. Oregon Laws 1941, ch 430. At this time there was considerable doubt whether the arrested person could be compelled to take the test. 51 Mich L Rev 1195 (1953). Probably that is why the Oregon law was *463initially written so that a person could not be tested if he or she objected.
Voluntary testing was unsatisfactory and states began to experiment with laws providing that by using the highways the driver consented to be tested. The validity of such laws continued to be dubious and, therefore, the legislature added provisions that the person could refuse and such refusal could not be introduced into evidence at the criminal trial. However, the person’s driver’s license could be suspended if he or she refused. 88 ALR2d 1064-1066 (1963). Oregon enacted such laws. Oregon Laws 1965, ch 574. This is basically the statute applicable to this case.
In 1979 the Oregon Legislature decided that it would not cause the implied consent law to be invalid if it amended that law to provide that evidence of the driver’s refusal to take the test would be admissible in civil and criminal proceedings. Oregon Laws 1979, ch 822.
The legislature has repeatedly evidenced serious concern about the problem of driving while under the influence of liquor. It has strengthened the enforcement of laws relating to driving while under the influence by amendments which changing consti- tutional law seemed to permit. In light of this history of repeated changes in the law in favor of stronger enforcement, I cannot read an implied legislative intent to require the opportunity for legal advice which certainly would not strengthen enforcement.
The statute expressly provides that the officer may inform the arrested person of his or her choices. ORS 487.805(2). In view of this express provision for the officer informing the arrested person of his or her choices and the consequences of the choices, I do not believe it reasonable to infer that the legislature also intended to legislate that the arrested person is entitled to additional advice from a lawyer. The subject of advice was expressly provided for; if the legisla*464ture had intended to provide additional advice, the normal procedure would be to expressly so provide.
The majority finds a legislative "concern with assuring the arrested driver a voluntary and informed choice.” From this the majority reasons that the decision to take or refuse the test must be "informed.” And then the majority concludes that from this premise, "informed” must mean with the assistance of counsel. In my opinion a statement of the argument is sufficient to reveal its deficiencies.
The majority also holds that the breathalyzer test results must be excluded from evidence because the officer did not comply with an implied provision of the statute requiring the officer to permit the arrested person to obtain legal advice. In my opinion this is contrary to our decision in State v. Valentine/Darroch, 264 Or 54, 66-69, 504 P2d 84 (1972). We there held that evidence would not be excluded because it was obtained in violation of a statute.
The majority is of the opinion that Valentine/Darroch is not in point but the issue in this case is identical to that in State v. Fogle, 254 Or 268, 459 P2d 873 (1969), in which we did exclude the evidence.
In my opinion State v. Fogle is not in point. ORS 487.815 (at the time of Fogle, ORS 483.644) provides:
"(1) Chemical analyses of the person’s breath, blood, urine or saliva, to be valid under ORS 487.545, shall be performed according to methods approved by the Health Division and by an individual possessing a valid permit to perform such analyses issued by the Health Division.
"(2) The Health Division shall:
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"(c) Test and certify the accuracy of equipment to be used by police officers for chemical analyses of a person’s breath before regular use of such equipment and periodically thereafter at intervals of not more than 60 days, such tests and certification to be conducted by trained technicians.
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*465This statute expressly provides that breathalyzer results are not "valid” unless the equipment is initially tested.
In Fogle there was no evidence of any test being made of the equipment. Therefore, we held that the result of the breath test was not admissible. We held that if the test was not "valid” the legislature clearly intended that the breath test would be incompetent evidence and, therefore, inadmissible.
ORS 487.815, pursuant to which Fogle was decided, has no application to this case. ORS 487.805, the statute applicable in this case, does not require even that the officer inform the arrested person of his or her choices. Subsection (2) provides that before one’s driver’s license can be suspended for refusal to take the test, the officer must inform the defendant of his choices and the consequences of his choice.
In State v. Osburn, 13 Or App 92, 96, 508 P2d 837, 839 (1973), the Court of Appeals held:
"We disagree with defendant’s interpretation of the controlling statutes.They do not explicitly require police officers to inform an arrested driver of anything. Instead, ORS 483.634(2) and ORS 482.550(2), read together, provide only that the Motor Vehicles Division cannot suspend a person’s driver’s license for refusing to take a breath test unless he has been advised of the required rights and consequences. Accordingly, failure of the arresting officer to do so only bars administrative license suspension for refusing to take the test, make the results thereof inadmissible in a criminal trial.” (Footnote omitted.)
In my opinion this is a reasonable interpretation of the statute. On the other hand, it does not appear reasonable to conclude that when the legislature expressly provides that the effect of an officer’s failing to advise a person of his or her choices and their consequences is to prohibit the state from suspending his or her license, the legislature, nevertheless, intended that if one is prevented from obtaining a lawy*466er’s advice the test results must be excluded from evidence.
Tongue and Howell, JJ., join in this dissent.