dissenting.
Less than two years ago, this court decided that when police officers unlawfully deny a driver’s request to telephone an attorney before choosing whether or not to submit to a breath test for intoxication, the results of such a test have not been obtained lawfully and cannot be used to convict the person of driving under the influence of intoxicants. State v. Scharf, 288 Or 451, 605 P2d 690 (1980). This was a decision under Oregon law, uncomplicated by constitutional problems. The decision could be changed by law, assuming the change to be otherwise constitutional. Today, this recent decision is overturned by a differently constituted plurality and one concurring opinion, although there has been no change in the law. Because the law remains what it was when Scharf was decided, because the plurality opinion needlessly enmeshes the law in serious constitutional difficulties, and because it leaves the people of Oregon with a legal right without an evident legal remedy, I dissent.
The court’s decision in State v. Scharf rested on two propositions. The first was that police officers do not have authority to prevent a person in custody from using an available telephone to call a lawyer (or for that matter, someone other than a lawyer), beyond what may be justified by the “immediate necessities of the arrest and the circumstances of custody itself.” 288 Or at 455. The court previously said as much in State v. Haynes, 288 Or 59, 602 P2d 272 (1979).1 It does not depart from that proposition *819today. The court reaffirms that it is unlawful for an officer to tell an arrested driver that he or she cannot make a telephone call until the driver first decides whether or not to submit to the breath test, as happened in this case.
The second proposition in State v. Scharf was that the unlawful prevention of a telephone call for legal advice, followed by the driver’s uncounseled submission to the breath test, vitiates the use of the test results against the driver in a criminal prosecution. This result followed because the “implied consent” law, ORS 487.805, does not provide for the involuntary administration of a breath test to a protesting suspect. To the contrary, it contemplates that the arrested driver may refuse to take the test at the price of a 120-day suspension of his or her driver’s license. ORS 482.540(1). Moreover, this sanction depends on a prior explanation to the driver of the consequences of refusing the breath tést, to be established in an adjudication in which the adequacy of the explanation can be contested. ORS 487.805(2), ORS 482.550. The driver who is “requested,” ORS 487.805(2), not commanded, to submit to the test therefore has a genuine choice with potentially decisive importance to his liberty. When a driver seeks legal advice before making that choice and is unlawfully prevented from doing so, there is an improper interference with the driver’s choice to take or refuse the breath test. The court concluded that the use of a test resulting from such improper interference to obtain a criminal conviction does not square with the statutory scheme that allows an informed driver to refuse the test at the price of a license suspension.
This conclusion in Scharf made it unnecessary to reach any constitutional question, at least unless and until the legislature might change the law. The legislature has not done so, as Justice Lent’s dissent points out. Nevertheless, the new plurality now chooses to plunge the court into needless constitutional speculations that ultimately lead it to a wholly incongruous conclusion.
Justice Tanzer’s opinion begins with a history of the so-called “implied consent statutes,” such as ORS 487.805, and its relationship to certain Supreme Court decisions. The sole object of this lengthy review is to argue *820that, although the statute directs the police to “request” a suspected driver to take the breath test, not to order or command the driver to do so, and although the statute permits the driver to refuse, nevertheless it does not leave him or her any choice. “Consent” and “refusal” are said not to be “antonyms.” With respect, that bit of verbal legerdemain flies in the face of a reality. Whether a refusal to submit to a breath test is a “refusal,” ORS 487.805(2), or a withdrawal of a fictitious “consent,” the effect is the same. The driver may choose not to submit to the test, and the test is not administered. The reason is not the driver’s use of any “physical power” to resist (291 Or at 793). To the contrary, the legislature chose to recognize the option to refuse in the statute itself.
The question therefore is not what effect a wrongful refusal to let an arrested person make a telephone call would have if the officer were authorized to enforce a breath test or other examination in any event. But he has no such authority. An officer who sought to coerce submission to a breath test over the protests of a resisting suspect plainly would not be following this statute.2 Even the *821sanction of license suspension can be imposed only if the officer first explains this consequence of persisting in the refusal. Obviously the objective of the “implied consent” laws is use of the test rather than refusal and license suspension; that hardly needs lengthy demonstration. Nonetheless, the statute preserves the choice of refusal. To call this provision a “threat” cannot hide the fact that it openly and candidly leaves a genuine choice to a driver who is far more threatened by a criminal conviction on the evidence of a breath test.
Part II of the opinion discusses a variety of constitutional limitations on the state’s authority to administer the breath test, which become relevant only because the new majority is determined to overturn State v. Scharf. In 11(C), the plurality launches into an essay on the political philosophy of liberty and the “Social Compact” in order to show that defendant’s right to call his lawyer derives from the 14th amendment of the United States Constitution. Whatever its merits as rhetoric, this section falls short as serious constitutional analysis.
First, invocation of the federal 14th amendment for an arrested person’s right not to be held incommunicado suggests that Oregon law would deny such a right if it were not restrained by higher federal authority. That is simply false, State v. Scharf, supra, State v. Haynes, supra, and it is an unwarranted affront to the law of this state. Moreover, in the plurality’s own terms, if there was such a thing as a “Social Compact,” it found its expression when Oregon Recame a state in 1859,3 well before the Civil War and the post-war adoption of the 14th amendment in 1868. It is wholly inconsistent with that theory to imply that Oregon law would allow police to hold arrested persons incommunicado if there had been no Civil War and no 14th *822amendment to impose a “Social Compact” on us. Quite apart from such a theory, however, this court repeatedly has held that it is not necessary to turn to restraints imposed on this state by federal law in order to protect the rights of Oregon citizens that their own law preserves in any event.4 If, indeed the conclusion that officers may not deny outside communication to one taken into police custody needed a constitutional source, it is most pertinently implicit in the constitutional guarantee of habeas corpus. Or Const Art I, § 23.5
Second, if the plurality is set upon its gratuitous essay into federal constitutional law, it should take its undertaking seriously. In questions of federal law, such as the 14th amendment, we follow the decisions of the United States Supreme Court, not our own views, as is constantly shown in the court’s treatment of fourth amendment claims. See, e.g., State *823v. Brown, 291 Or 642, 634 P2d 212 (1981). But the plurality makes no effort to determine what the Supreme Court has held or said bearing on the issue before us. Whatever the Supreme Court might hold in such a case, one thing is certain: Neither that court nor any court familiar with federal constitutional law would cite as the source of its “analysis” a quotation from a single justice dissenting from a dismissal of an appeal in a birth control case.6 The plurality’s quotation merely demonstrates the pitfalls of transferring large generalities from one area of law into a totally different one. I do not say that the Supreme Court would not hold that the 14th amendment protects an arrested person’s right to communicate with the “outside” world; I hope that the Court would so hold. But surely there are more relevant sources for understanding a person’s liberty not to be imprisoned incommunicado than to compare it with freedom to use contraceptives or to have an abortion. That is not a serious attempt to discern and to follow the federal law.
Third, after finding a violation of due process of law, the plurality opinion incongruously holds that a conviction resulting from that violation nevertheless will not deprive Mr. Newton of liberty without due process of law. The opinion finds that it was a violation of due process to deny Newton his requested opportunity to telephone for legal advice. As I have said, this constitutional holding is unnecessary, though it may be correct. The opinion then asserts that there is no proof of a “causal connection” between this denial and Newton’s submission to the breath test, because the record does not show that he would have reached his lawyer or what advice the lawyer would have given him.
*824The second part of that assertion is disingenuous; a court should assume that counsel would advise a client not to take the breath test unless he is certain of a negative result. Contrary to the plurality opinion, when the impropriety consists of interfering with a person’s access to counsel, we do not invite either the police or trial courts to “speculate” whether counsel might have been unavailable or might have advised cooperation with the police. Cf. State v. Haynes, supra. If the state wishes to assert that improper interference with access to counsel was harmless for such a reason, it must shoulder the burden of demonstrating that fact. But the fact is that in this case, as in Scharf, the officers did not prevent the telephone call to a lawyer because they thought it would be futile or immaterial to their investigation. To the contrary, they followed an official policy of preventing such calls precisely in order to forestall advice to decline the test. When the state adopts and enforces a policy of denying access to counsel for this very purpose, it is reasonable to assume that the denial has served that purpose unless the opposite is shown. It should also be obvious that the denial is designed to affect and does affect a critical stage in a criminal investigation, often the decisive stage.7
*825The breath test evidence in this case was obtained by deliberate, official interference with Mr. Newton’s efforts to call a lawyer, thus obtained unlawfully and, in the plurality opinion, contrary to due process of law. Nevertheless, that opinion maintains that a conviction based on this violation of due process would not be a violation of due process. On its face such a position is an anomaly. The opinion attempts to explain away the anomaly by a further disquisition on “competing policy considerations” and an “empirical and pragmatic approach,” concluding that due process does not need to be enforced in this case because it is probably not needed in order to deter future official violations. The explanation does not resolve the obvious contradiction, it only deepens it. The person whose liberty is not to be taken without due process of law is the present defendant, Kenneth Ray Newton. The person who, according to the plurality opinion, was deprived of access to counsel without due process of law is the present defendant, Mr. Newton. It is Mr. Newton whom the state intends to convict upon a process of which a crucial part was not “due process.” Whether the total process is or is not due process with respect to Newton cannot logically depend on this court’s guess as to the future policies of the state police toward other motorists. That kind of “pragmatism” has recently become a fashionable way to “explain,” and perhaps to undermine, the Weeks8 doctrine in federal search and seizure cases, as Justice Tanzer says, but I believe it has no proper place in assuring each individual brought before a court of due process of law. The state and federal constitutions do not make the individual person a mere instrument for judicial “policy considerations,” to be protected when a court thinks this will usefully influence official conduct and not protected when a court thinks that it will not. They do not invite courts to manipulate due process for the individual only as a means to some other end. Such an approach makes a mockery of a guarantee that government shall not deprive any person of life, liberty, or property without due process of law. US Const Amend V, Amend XIV.
Finally, the prevailing opinions in this case maintain a discreet silence on the question what remedy is available *826to Mr. Newton, or to others who despite the Court’s hopes may find themselves in his position. The truth is that the only relevant remedy for what the Court agrees was an unlawful, perhaps even unconstitutional, procedure is a trial untainted by that procedure. An arrested person whose request to telephone for help or counsel is wrongfully refused ordinarily is not a victim of physical or psychological mistreatment. His or her interest is not in punishing an officer who may only have followed erroneous instructions and otherwise have been wholly inoffensive. Nor is it in being made whole for a financial injury. The interest that is injured by the refusal is the arrested person’s interest in his or her legal rights when in police custody, and the injury directly threatened by the wrongful refusal is loss of liberty. One may ask what remedy the Court expects the next person to seek who learns after the fact that an officer’s refusal of a request to call counsel was unlawful. The one remedy that addresses the very interest which the telephone call could protect is to remove the fruits of the unlawful refusal from the prosecution. If that is denied, no similarly relevant remedy is evident, and the Court mentions none.
To sum up: Oregon law does not provide for subjecting an arrested motorist to a breath test over the motorist’s objection. The law provides that the motorist may refuse the test, with legal consequences for his or her license to drive. When an arrested motorist requests to use an available telephone to obtain advice whether to take or refuse the test, the request may not lawfully be denied, as the Court reaffirms in this case.
Given these premises, State v. Scharf held that when such a request to telephone one’s lawyer for advice was wrongfully denied, breath test results thereafter obtained from the arrested person could not be used in prosecuting that person. This inference drawn from the statutory recognition of the arrested person’s choice to refuse the test was not unanimous, but the disagreement remained a simple and straightforward question of Oregon law which could be addressed by the legislature if it wished. The legislature did not change the law, although it reexamined and amended the statutes governing driving under the influence of intoxicants.
*827Instead we now have a long and tortured opinion which seeks to explain that the reason why Oregon lets arrested persons use the telephone is that the federal 14th amendment compels Oregon to do so, that the refusal of permission to make the call in this case was a violation of due process under that amendment, and that nevertheless it is no violation of due process to prosecute this defendant on evidence obtained in apparent consequence of that refusal. Although that constitutional analysis does not command a majority of the court, its proposed shift of direction from Scharf is cause for regret.
We are dealing, not with convicted and imprisoned offenders, nor only with drivers suspected of intoxication. We are dealing with the rights of ordinary men and women who have been placed under arrest for an alleged traffic offense or any other reason and detained from proceeding toward their intended and expected destinations, whose unexplained disappearance can cause serious concern for others as well as inconvenience and trouble for themselves. A number of consequences no doubt are implicit in statutory authority to take a person into custody, but authority to prevent him or her from communicating with the outside world, particularly from seeking to obtain legal counsel, is not one of them.
Whether motorists are left the choice to refuse breath tests for intoxication perhaps is not of fundamental importance. An arrested person’s access to outside advice, particularly legal advice on a critical choice while in custody for potential prosecution, is of fundamental importance. A view that interference with such access would not be unauthorized in Oregon but for federally imposed restraints carries ominous implications beyond the details of the “implied consent” statutes. I would adhere to our previous decision under the same statutes until they are changed.
Lent and Peterson, JJ., join in this dissent.“ ‘It is not disputed that an arrested person has a right to have access to counsel when taken into custody and thereafter, subject only to the practical necessities of custody that may temporarily prevent immediate communication with counsel. We know nothing in Oregon law, nor did counsel for the state when asked, that would authorize the police to prevent or delay communication between an arrested person and a lawyer who is, or who is asked to become, that person’s attorney. Certainly nothing of the kind follows from the simple fact of an arrest.. . .’ ”
288 Or at 70-71, quoted in State v. Scharf, 288 Or at 455, n. 2.
This illustrates the flaw in the plurality opinion’s careless and illconsidered phrasing of state police authority under ORS 181.040 as encompassing “such actions as reasonably tend to accomplish [enforcement of the traffic laws] and which are not prohibited by law.” There are many things which might “tend” to aid in law enforcement but which an officer has no authority to do, even if they are not “prohibited by law.” For example, we need not look to the law of criminal assault to conclude that ORS 181.040 does not authorize highway patrol officers forcibly to draw blood from every motorist stopped on suspicion of driving while intoxicated, though this might “tend” to produce evidence of crime. See State v. Heintz, 286 Or 239, 255, 257, 594 P2d 385 (1979) (concurring opinion). We normally look to law for which government personnel are authorized to do to people, not for express prohibitions on what they may do. The plurality’s phrasing only begs the question of authority by characterizing the legal scope of authority by that old favorite, “reasonably.”
When officials have exceeded their authority in obtaining evidence, that evidence has been obtained unlawfully and cannot be made the basis of a prosecution. The United States Supreme Court so held (as a matter of federal law) in Colonnade Catering Corp. v. United States, 397 US 72, 90 S Ct 774, 25 L Ed 2d 60 (1970), and this court in State v. Valdez, 277 Or 621, 561 P2d 1006 (1977), and State v. Fairley, 282 Or 689, 580 P2d 179 (1978). As we said in State v. Seharf, the test for exclusion is not whether the premise of unlawfulness is of constitutional origin but “whether the premise of impropriety was a law addressed to the manner of obtaining or using the evidence or a law protecting some unrelated interest.” 288 Or at 461, n. 10. Certainly the improper police practice in this case — the practice of denying an arrested person a telephone call before deciding to submit to the breath test — concerned the manner of obtaining evidence; that was the purpose of the practice.
Or Const Art I, § 1:
“We declare that all men, when they form a social compact are equal in right: that all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, and happiness; and they have at all times a right to alter, reform, or abolish the government in such manner as they may think proper.”
See also Or Const Art I, § 33:
“This enumeration of rights, and privileges shall not be construed to impair or deny others retained by the people.”
As stated in State v. Scharf, 288 Or at 454-455:
“Before addressing such federal issues, however, a court’s responsibility is first to decide the effect of the state’s own laws, because if the state provides what defendant claims, it does not deprive her of the due process commanded by the 14th amendment. Conversely, a procedure not forbidden by the United States Constitution is not by that fact ‘authorized’ in the absence of contrary state law, for the Constitution only limits the actions of state officials; authority to take these actions must be found in state law. State v. Sims, 287 Or 349, 353, n. 1, 599 P2d 461 (1979); State v. Spado, 286 Or 305, 309, 594 P2d 805 (1979); State v. Smyth, 286 Or 293, 593 P2d 1166 (179); State v. Scurlock, 286 Or 277, 593 P2d 1159 (1979); State v. Heintz, 286 Or 239, 255, 257-258, 594 P2d 385 (1979) (concurring opinion); State v. Greene, 285 Or 337, 349, 591 P2d 1362 (1979) (concurring opinion); State v. Flores, 280 Or 273, 279, 570 P2d 965 (1977); Brown v. Multnomah County Dist. Ct., 280 Or 95, 570 P2d 52 (1977); State v. Ivory, 278 Or 499, 503, 564 P2d 1039 (1977); State v. Valdez, 277 Or 621, 561 P2d 1006 (1977); State v. Florance, 270 Or 169, 180-187, 527 P2d 1202 (1974); State v. Brown, 262 Or 442, 453, 497 P2d 1191 (1972). If the state law is determined to be adverse to defendant, of course the federal issues remain to be decided. But the court will not needlessly interpret state law in a manner that would reach an unconstitutional result. State v. Smyth, supra; State v. Harmon, 225 Or 571, 577, 358 P2d 1048 (1961), and cases there cited.”
Subsequently, the same principle was followed in State ex rel Oregonian Pub. Co. v. Deiz, 289 Or 277, 613 P2d 23 (1980), and Sterling v. Cupp, 290 Or 611, 625 P2d 123 (1981).
Or Const Art I, § 23:
“The privilege of habeas corpus shall not be suspended unless in case of rebellion, or invasion the public safety require it.”
See also Art I, § 13:
“No person arrested, or confined in jail, shall be treated with unnecessary rigor.”
The plurality’s quotation from Justice Harlan’s dissent in Poe v. Ullman, 367 US 497, 543, 81 S Ct 1752, 6 L Ed 2d 989 (1961), does not become more relevant because the Supreme Court later invalidated state laws against the use of contraceptives and against abortion on divergent theories of the 14th amendment in Griswold v. Connecticut, 381 US 479, 85 S Ct 1678, 14 L Ed 2d 510 (1965) and Roe v. Wade, 410 US 113, 93 S Ct 705, 35 L Ed 2d 147 (1973); see 291 Or at 806, n. 10. Those issues are too remote from anything involved here. There is no need to enter into the controversial theories of “substantive due process” when this case involves the rights of a person who is taken into police custody, and who faces potential imprisonment for crimes. Those, of course, are the central concerns of “liberty” in the 5th and 14th amendments.
If a lineup, which a suspect in custody has no option to avoid and in which he is only a passive exhibit, is a “critical stage” for the purpose of a right to counsel, United States v. Wade, 388 US 218, 87 S Ct 1926, 18 L Ed 2d 1149 (196V), a fortiori an arrested suspect faces a “critical stage” when the police insist on an uncounseled choice whether or not to produce potentially decisive evidence. As the Supreme Court put it in Wade:
“When the Bill of Rights was adopted, there were no organized police forces as we know them today. The accused confronted the prosecutor and the witnesses against him, and the evidence was marshalled, largely at the trial itself. In contrast, today’s law enforcement machinery involves critical confrontations of the accused by the prosecution at pretrial proceedings where the results might well settle the accused’s fate and reduce the trial itself to a mere formality. In recognition of these realities of modern criminal prosecution, our cases have construed the Sixth Amendment guarantee to apply to ‘critical’ stages of the proceedings. The guarantee reads: ‘In all criminal prosecutions, the accused shall enjoy the right.. . to have the Assistance of Counsel for his defence.’ (Emphasis supplied.) The plain wording of this guarantee thus encompasses counsel’s assistance whenever necessary to assure a meaningful ‘defence.’ ”
388 US at 224-225. Unlike the lineups in Wade and Gilbert or the blood test in Schmerber v. California, 384 US 757, 86 S Ct 1826, 16 L Ed 2d 908 (1966), the breath test by law is not administered without the subject’s consent, with alternative legal consequences that make the choice more crucial to the case.
Weeks v. United States, 232 US 383, 34 S Ct 341, 58 L Ed 652 (1914).