*714OPINION
LEVY, Justice,dissenting.
I. dissent because, as stated more fully in my dissenting opinon in Ramirez v. State, 721 S.W.2d 490, 491 (Tex.App.—Houston [1st Dist.] 1986, pet. granted), implicit in the constitutional right to counsel is the assurance that the right, to be effective, will be available when needed. If the right to the assistance of counsel is shaped by the need for such assistance, as I believe it is, then logic requires that the right attach not merely during trial, but rather at the earlier stages in the criminal justice process where critical events might well settle the accused’s fate and reduce the trial itself to a mere formality. See Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985). In my view, the earliest critical stage probably occurs when police attention begins to focus on the accused for the purpose of initiating criminal charges against him. Thus, I would sustain appellant’s fourth and fifth points of error. See Tex. Const. art. 1,10; Tex.Code Crim.P.Ann. art. 1.05 (Vernon 1977).
Further, I disagree with the majority’s disposition of the sixth through ninth points of error. In these points, the appellant contends that the trial court erred in not suppressing evidence of his refusal to submit to the intoxilyzer test because it was the product of a violation of his right to the assistance of counsel under various federal and state constitutional and statutory provisions.
Several court decisions, perhaps the most explicit of which is Dudley v. State, 548 S.W.2d 706 (Tex.Crim.App.1977), prohibiting the State from eliciting testimony concerning an accused’s refusal to take a sobriety test, have rested upon Tex.Code Crim.P.Ann. art. 38.22 (Vernon Supp.1987), the “confession statute,” as well as the rule of evidence that forbids an accused’s silence to be used against him as tending to establish guilt. See Cardwell v. State, 156 Tex.Cr.R. 457, 243 S.W.2d 702 (1951) (op. on reh’g).
When a police officer is permitted to testify that an accused has exercised his right of refusal or his right of silence, the accused is thereby discredited before the jury, which is precisely what the self-incrimination statute prohibits. The privilege against self-incrimination is thus belittled and further eroded. Both reason and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), suggest that the constitutional right to remain silent in the face of accusation carries with it the assurance that such silence will not result in any penalty. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). In 1983, the U.S. Supreme Court reaffirmed its determination that federal courts could not use such silence for impeachment because of its dubious probative value, and reconfirmed its application to the states because of the “fundamental unfairness of implicitly assuring a suspect that his silence will not be used against him and then using his silence to impeach an explanation subsequently offered at trial.” South Dakota v. Neville, 459 U.S. 553, 564-5, 103 S.Ct. 916, 922-3, 74 L.Ed.2d 748 (1983). The Court, however, distinguished the right of refusal from the right of silence, declaring that the right to refuse the sobriety test was a matter of grace bestowed by South Dakota and that warnings attached to such right contained no “misleading implicit assurances (to the suspect) as to the relative consequences of his choice.” Id. at 565, 103 S.Ct. at 923.
When a defendant verbally refuses to submit to a chemical test for intoxication, he is testifying against himself and this is clearly “testimonial evidence.” I would hold that evidence of refusal or of silence is a by-product of the compulsion to take the test, testimonial in nature, and constitutes compulsory self-incrimination in violation of article 38.22. Cardwell v. State, 156 Tex.Crim. at 457, 243 S.W.2d at 704.
For these reasons, I would also sustain appellant’s sixth through ninth points of error, reverse the judgment of conviction, and remand the cause for a new trial.