specially concurring.
I concur in the result reached by the opinion by Tanzer, J. I question, however, its holding that the right of a person arrested to call an attorney is a constitutional “liberty” under the Fourteenth Amendment of the Constitution of the United States. No such contention was made by defendant in this case. I agree that a person arrested has a right to call an attorney, but am not prepared to hold at this time that such a right is a constitutional “liberty” under the Fourteenth Amendment.
With respect to the vigorous dissent by Linde, J., I agree with much of its criticism of that constitutional *814analysis in the opinion by Tanzer, J. As pointed out by that dissent, however, the previous decision by this court in State v. Scharf, 288 Or 451, 605 P2d 690 (1980), was not based upon constitutional grounds, but upon the grounds that the defendant in that case had a right to call her attorney under existing Oregon law, regardless of federal constitutional law, and that it follows from this violation of Oregon law that the results of the breathalyzer test must be excluded.
I agree with the decision in Scharf on the first ground, but disagreed, and still disagree, with the second ground of that decision. In my view, the exclusionary rule should ordinarily be applied only for violations of constitutional rights and should not ordinarily be applied for violations of statutes or on other non-constitutional grounds.1 See State v. Valentine/Darroch, 264 Or 54, 66-69, 504 P2d 84 (1972). See also State v. Bishop, 288 Or 349, 605 P2d 642 (1980); State v. Valdez, 277 Or 621, 629, 561 P2d 1006 (1977); State v. Cortman, 251 Or 566, 571, 446 P2d 681 (1968). It is also my view that the exclusionary rule is a rule which should be strictly construed in cases such as this. Driving while under the influence of intoxicants is an offense which is the cause of more deaths than any other crime or offense.
To admit into evidence the results of a breathalyzer test taken without advice of counsel is no more unreasonable, in my opinion, than to admit into evidence the results of a blood alcohol test from blood taken from an unconscious driver in a hospital, as held to be admissible in Breithaupt v. Abram, 352 US 432, 77 S Ct 408, 1 LED 2d 448 (1957). See also State v. Heintz, 286 Or 239, 594 P2d 385 (1979). For these reasons, I concur in the result reached by the majority.
A statute may, of course, expressly provide that evidence obtained through its application will not be “valid” unless certain procedures are followed. In a case involving such a statute, a court finding non-compliance with a required procedure would be correct in refusing to admit the “invalid” results into evidence. See State v. Fogle, 254 Or 268, 459 P2d 873 (1969). With respect to the question raised in this case, ORS 487.805, in my opinion, is not such a statute and, therefore, requires no such exclusion.