dissenting. I respectfully dissent. The Court holds that the state trooper was justified in concluding defendant had refused to take the test when defendant continued to insist on speaking to Ms. Morale, his attorney of choice, after twenty-two minutes and five calls that were unsuccessful because her line was busy. The majority bases its holding partially on the fact that the trooper had contacted a public defender and then handed the telephone to defendant before reaching his conclusion.
Certainly, as we have held, a defendant is entitled to consult with a public defender before deciding whether or not to take the test; indeed, we have said that even fourteen calls were not enough if abandoning efforts meant no consultation at all. State v. Garvey, 157 Vt. 105, 106, 595 A.2d 267, 268 (1991). Here, however, the majority holds that all that is required is an opportunity to consult with a public defender before thirty minutes has elapsed, even if the defendant asks for other counsel. I cannot agree.
There was no good reason to deny defendant his attorney of choice in this case. There is no evidence of uncooperativeness by defendant, only his insistence on speaking with his own attorney, Ms. Morale. Cf. Stockwell v. District Court, 143 Vt. 45, 48, 460 A.2d 466, 467 (1983) (officers properly concluded there was refusal when faced with defendant’s “silence, meaningless insults, and incoherencies”). The officer did not know that Ms. Morale was unavailable. Her line was busy, but there was no reason to suppose the line would not clear within the next few minutes. This is very different from Gilman v. Commissioner of Motor Vehicles, 155 Vt. 251, 253, 583 A.2d 86, 87 (1990), where we held that the defendant’s insistence on speaking with an attorney whom the officer and the defendant both knew was unavailable was tantamount to a refusal.
Defendant did not request a public defender, yet the officer continued to call from the public defender list even after defendant told him he would speak to his law partner, who was the husband of a public defender and had answered in response to one of the officer’s calls. When a defender was finally contacted, defendant did not seek advice, but asked only that the defender call Ms. Morale. He thus never had any meaningful consultation with an attorney before the *618officer came to the unwarranted conclusion that there was a refusal. Cf. Pfeil v. Rutland District Court, 147 Vt. 305, 310, 515 A.2d 1052, 1056 (1986) (“Had defendant been afforded a meaningful opportunity to consult with counsel, he may well have submitted to testing.”).
Although the police are not required in every case to allow a full thirty minutes in which to make a decision, see Stockwell, 143 Vt. at 48, 460 A.2d at 467 (refusal implied nineteen minutes after licensee spoke to counsel where licensee responded to officer’s inquiries with silence or insults), the facts here do not demonstrate a refusal. Defendant was within his rights to insist on an opportunity to speak to his attorney of choice while time still remained before he had to make a decision regarding the test. See Garvey, 157 Vt. at 107, 595 A.2d at 268 (“public defender shall be notified unless waived by the suspect or unless the suspect contacts an attorney of choice within thirty minutes, before a decision about taking the test is required”). I must therefore dissent.
I am authorized to say that Justice Morse joins this dissent.