dissenting in part.
I disagree with the court’s holding that evidence obtained subsequent to a refusal to allow an OMVI suspect to. contact counsel in violation of AS 12.25.150(b) must be excluded. In support of this result, the court relies on State v. Sundberg, 611 P.2d 44 (Alaska 1980). I believe that Sundberg and other Alaska cases discussing the exclusionary rule support the opposite conclusion.
Determining whether an exclusionary remedy is appropriate requires a balancing of the purpose behind excluding illegally obtained evidence with the interest in admitting reliable evidence in those proceedings. State v. Sears, 553 P.2d 907, 912 (Alaska 1976) (applicability of exclusionary remedy in probation revocation proceedings). The primary purpose of the exclu*1216sionary rule is deterrence of future illegal conduct by the police. Sundberg, 611 P.2d at 51 (footnote omitted). The rationale of this rule is that if the police are aware that the fruits of their illegal conduct will be excluded from trial, then the police will cease such conduct.
After noting the existence of potential deterrents in criminal sanctions, police departmental proceedings, civil rights actions, and tort suits, we concluded in Sundberg that an exclusionary rule would not provide significant additional deterrence to excessive force arrests. Id. at 51-52. In the present case, there are additional reasons why an exclusionary remedy is not necessary for violations of AS 12.25.150(b).
First, unlike the situation in Sundberg, where there were no built-in sanctions for violations of the forcible arrest statute, AS 12.25.150 clearly and expressly sets forth both criminal and civil sanctions against police for the deprivation of an arrestee’s rights under the statute. AS 12.25.150(c) provides:
It shall be unlawful for any officer having custody of a person so arrested to wilfully refuse or neglect to grant any prisoner the rights provided by this section. A violation of this section is a misdemeanor, and, upon conviction, the offender is punishable by a fine of not more than $100, or by imprisonment for not more than 30 days, or by both.
AS 12.25.150(d) provides:
In addition to the criminal liability in (c) of this section, an officer having a prisoner in custody who refuses to allow an attorney to visit the prisoner when proper application is made therefor shall forfeit and pay to the party agrieved the sum of $500, recoverable in a court of competent jurisdiction.
Thus, the legislature created a statutory right to “telephone or otherwise communicate” with counsel immediately after arrest, AS 12.25.150(b), and provided deterrence for violations of this right by authorizing criminal prosecution of a police officer for willfully refusing or neglecting to allow an arrestee to exercise this right. An officer convicted under this statute has a misdemeanor on his record, faces a fine up to $100 and/or imprisonment up to thirty days, and faces a civil judgment of $500 payable to the aggrieved arrestee.
Second, unlike the potential deterrents discussed in Sundberg, the criminal sanction would simply require the arrestee to make a criminal complaint. The state would be charged with the good faith obligation to investigate and, if warranted, to prosecute and bear the cost of such prosecution; a judge would determine the degree of punishment rather than an interested police department official; there would not be the time delays associated with civil suits. I believe that a police officer would more likely be deterred by the potential criminal record and jail time than by application of the judicially created exclusionary rule, which simply means that one of the officer’s many arrests failed to culminate in a conviction. Therefore, it is clear that the minimal, if any, deterrent effect that an exclusionary remedy would have considering the civil and criminal deterrents already built into AS 12.25.150 is far outweighed by the significant interest in admitting probative evidence gained from a breathalyzer test.
Sundberg implies an additional reason for not imposing an exclusionary remedy for violations of the excessive force statute, namely, when the officers are acting in good faith:
[W]e are of the view that imposition of the exclusionary rule on the particular facts of the case at bar was clearly unwarranted ... [because] the officer ... was proceeding in accordance with existing departmental directives, and the degree of force permissible under the necessary and proper phraseology of AS 12.25.-080 had not been previously construed by this court.
611 P.2d at 52 (footnote omitted).
In this case, the police quite likely believed in good faith that Miller and Copelin had no right to consult counsel before taking the breathalyzer. Even the court of appeals, relying on Eben v. State, 599 P.2d *1217700, 710 n. 27 (Alaska 1979), understood AS 12.25.150 to be merely a bail statute and therefore believed it was not applicable in the context of an arrest followed by a breathalyzer test administration. Copelin v. State, 635 P.2d 492, 493-94 (Alaska App.1981). Thus, this is not a situation where the police acted in blatant disregard of an individual’s constitutional and statutory rights; rather, they were engaged in conduct that they reasonably believed was legal. Only after this decision is published and the police become aware that an individual does have a limited statutory right to consult an attorney prior to taking a breathalyzer test does the deterrence rationale become operative.
In short, application of the exclusionary rule is intended to deter future illegal conduct. This deterrence is amply provided by the decision in this case, which makes it clear for the first time that the conduct is illegal, and by the criminal sanctions imposed by the legislature for officers engaging in the illegal conduct.
The court’s holding ignores these two significant factors of Sundberg militating against applying an exclusionary remedy and attempts to distinguish this case from Sundberg on the ground that the breathalyzer situation is more like a “ ‘conventional search and seizure ... involving] a relatively static factual circumstance where the object of police efforts is to obtain evidence of criminal conduct.’ ” 659 P.2d at 1214 (quoting Sundberg, 611 P.2d at 52). Given that administration of a breathalyzer test “provides time for reflection before action” and that “like a traditional search, [it] consists of intentional efforts by the police to obtain evidence,” id. the court opinion concludes that an exclusionary remedy is needed as an additional deterrent. It neglects to state, however, that Sundberg distinguished conventional search situations on the ground that “the fleeing offender — arrest situation ... often requires law enforcement officials to make rapid decisions within the framework of fluid and confused factual situations which do not permit significant reflection, the obtaining of legal advice, or the intervention of, and decision from, a neutral and detached judicial officer.” 611 P.2d at 52. I believe that the breathalyzer situation is in reality somewhere between the “traditional search” situation and the “hot pursuit” circumstance. Although the factual situation is not likely to be as “fluid and confused” as hot pursuit, the police officer is nonetheless going to have to make an educated guess, without help from counsel, whether a “reasonable time” has passed so that he may put the suspect to his choice. At this point, with no evidence to the contrary, I think the court must assume that such a decision will be made in good faith by law enforcement personnel.
In other words, application of the exclusionary rule at this stage is premature. As we stated in Sundberg:
[W]e think it appropriate to caution that our holding is not immutable. In the event a history of excessive force arrests is shown, demonstrating that existing deterrents are illusory, we will not hesitate to reexamine the question of whether an exclusionary deterrent should be fashioned in the situation where evidence is obtained as a result of an arrest which is effectuated by excessive force.
Id. (footnote omitted). Cf. Elson v. State, 659 P.2d 1195, 1205 n. 31 (Alaska 1983) (same cautionary instruction given after permitting illegally seized evidence to be used in sentencing proceedings). Similarly, in the event that the clearly delineated statutory right to consult with counsel is violated in the future and that the civil and criminal sanctions are shown not to deter these violations, then this court should not hesitate to apply the exclusionary rule.
I join the court’s disposition of all other issues in the petition for hearing.