dissenting.
The basic philosophy of the Implied Consent Act is contained in the first sentence of Section 39-20-01, N.D.C.C., which reads:
“Any person who operates a motor vehicle on a highway or on public or private areas to which the public has a right of access for vehicular use in this state is deemed to have given consent, and shall consent, subject to the provisions of this chapter, to a chemical test, or tests, of the blood, breath, saliva, or urine for the purpose of determining the alcoholic, other drug, or combination thereof, content of the blood.” [Emphasis added.]
I have not found any provision in Chapter 39-20, N.D.C.C., which requires that a person subject to Chapter 39-20 be permitr ted to consult with counsel before deciding whether or not to undergo such a test. There is certainly nothing in Section 39-20-04, N.D.C.C., which provides for the revocation of the privilege of driving a motor vehicle upon refusal to submit to testing which requires that a person subject to the Implied Consent Act be permitted to consult with counsel before deciding whether or not to refuse to take the tests provided for in the Act.
To judicially require now almost 28 years after the adoption of the Implied Consent Act between an arrest and testing the interposition of Section 29-05-20, N.D.C.C., which had its origin in the Code of Criminal Procedure of 1877, is a backward step. Section 29-05-20 reads:
“Delay after arrest prohibited — Attorney. — The accused in all cases must be taken before a magistrate without unnecessary delay, and any attorney at law entitled to practice in the courts of record of this state, at his request, may visit such person after his arrest.”'
In this case, no evidence has been submitted indicating that there was unnecessary delay in bringing Mr. Kuntz before a magistrate, or that Mr. Kuntz was prevented from contacting an attorney or securing an attorney’s advice following his refusal to take this test.
It is especially interesting to note from the information contained in footnote one of the majority opinion that Minnesota, which is listed as one of the states that has interpreted its right-to-counsel statute as entitling a person arrested for driving under the influence a reasonable opportunity to consult with an attorney before deciding to take a chemical test, has now concluded after its Legislature amended its act to provide that the driver be informed of a right to consult with an attorney “after submitting to testing,” that a driver arrested for DWI no longer has even a limited statutory right to consult with counsel before deciding to submit to chemical testing. Nyflot v. Commissioner of Public Safety, 369 N.W.2d 512 (Minn.1985) at 515.
I would so construe our Implied Consent Act, inasmuch as Section 39-20-01, N.D. *291C.C., states that a person who operates a motor vehicle on a highway or on public or private areas to which the public has a right of access for vehicular use in this state is deemed to have given consent to taking the test subject only to the provisions of Chapter 39-20. If the Legislature had intended to interpose such a right to consult with counsel between being arrested and being tested, or to being asked to submit to testing, the Legislature surely would have amended the Implied Consent Act in the years that have expired between the adoption of the Implied Consent Act and the occurrence of the facts in this case.
In conclusion, I see no good reason for distinguishing Agnew v. Hjelle, 216 N.W.2d 291 (N.D.1974), to limit its rationale to the specific facts of that case. What I say here today is consistent with my dissent in Lund v. Hjelle, 224 N.W.2d 552 at 557-560.
I believe the majority has taken a different direction, which is a proper function of the majority of this Court, and one I would not be opposed to joining in, if I were convinced that it was the proper direction to take, but I am not so convinced. The Court in State v. Pandoli, 109 N.J.Super. 1, 262 A.2d 41, 42 (1970), concluded that a driver “had no right to have the advice of an attorney before determining whether he would accede to the test, insofar as the sanction of revocation for refusal is concerned.” The Court reasoned:
“In any event, the request for consultation with counsel necessarily involved a delay in administration of the test. Having in mind the remedial purpose of the statute, and the rapidity with which the passage of time and the physiological processes tend to eliminate evidence of ingested alcohol in the system, it is sensible to construe the statute to mean that anything substantially short of an unqualified, unequivocal assent to an officer’s request that the arrested motorist take the test constitutes a refusal to do so. See Ent v. State, Department of Motor Vehicles, supra [265 Cal.App.2d 936, 71 CaLRptr. 726 (Ct.App.1968) ]. The occasion is not one for debate, maneuver or negotiation, but rather for a simple ‘yes’ or ‘no’ to the officer’s request.” 262 A.2d at 42.
See also Campbell v. Superior Court, 106 Ariz. 542, 479 P.2d 685 (1971); Bapat v. Jensen, 220 Neb. 763, 371 N.W.2d 742 (1985); Hoyle v. Peterson, 216 Neb. 253, 343 N.W.2d 730 (1984); State v. DeLorenzo, 210 N.J.Super. 100, 509 A.2d 238 (1986); State v. Vega, 200 N.J.Super. 448, 491 A.2d 797 (1984); McFarren v. Com. Dept. of Transp., 507 A.2d 879 (Pa.Cmwlth.1986); Dunn v. Petit, 388 A.2d 809 (R.I.1978); Cavaness v. Cox, 598 P.2d 349 (Utah 1979).
I accordingly, respectfully dissent.