dissenting.
For the purposes of this dissent I agree with the majority opinion that on the facts before us there appears to be no valid reason why Kuntz should not have been permitted to call his attorney before deciding whether or not to submit to the Intoxi-lyzer test. Although the matter before us is a civil proceeding the arrest was for the commission of a crime, i.e., driving while under the influence of alcohol or drugs in violation of Section 39-08-01, N.D.C.C., and therefore Section 29-05-20, N.D.C.C., appears applicable by the very terms thereof.1 I cannot, however, agree that a violation of the statutory right2 automatically *292leads to a conclusion that there was no refusal and thus engaging, despite the statement to the contrary, what appears to be a form of the exclusionary rule in this civil proceeding.
Because Section 39-20-08, N.D.C.C., provides that a refusal to submit to a test is admissible evidence in both civil and criminal proceedings,3 the majority concludes that the civil and criminal consequences are so intermingled that they are not perceptibly different to lay persons. But this court has previously held that proceedings under Chapter 39-20, N.D.C.C., are civil in nature and separate and distinct from criminal proceedings [State v. Abrahamson, 328 N.W.2d 213 (N.D.1982) ], and I do not understand the majority to be enunciating a new “perceptibly different to a lay person” standard by which this court is to review this and similar matters.
Furthermore, the right to refuse to submit to the test after a valid arrest is statutory. Sec. 39-20-04, N.D.C.C. From the perspective of constitutional rights, a test could properly be administered as a search incident to arrest notwithstanding Kuntz’s lack of consent or even his objection. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); State v. Mertz, 362 N.W.2d 410 (N.D.1985); State v. Kimball, 361 N.W.2d 601 (N.D.1985).
The majority opinion may be read to mean that because Kuntz requested permission to talk with an attorney before determining whether or not to submit to the test, his refusal to submit to the test was not the affirmative refusal we have held is required by Section 39-20-04. Mertz, supra; Kimball, supra. But if that is the reading to be given the opinion, the issue of whether or not there was an affirmative refusal to submit to the test is, under at least one of the cases cited favorably in the majority opinion, a question of fact to be determined by the trier of fact.
Thus in Siegwald v. Curry, 40 Ohio App.2d 313, 318, 319 N.E.2d 381, 385 (1974), the Ohio Court of Appeals stated:
“It is not a refusal to take the required test for the arrested person to request the exercise of his statutory right, ... to telephone an attorney during this reasonable time period in which he is determining whether to take the test, so long as the delay occasioned by such communication is short and reasonable. On the other hand, where questions are asked or requests made, including a request to consult an attorney, as a subterfuge to avoid taking a test, there is a refusal ... Basically, whether or not there has been a refusal is a factual determination to be made by the trial court based upon the facts and circumstances of the case.”
After noting that most courts in other jurisdictions that have considered the issue have held that a refusal to submit to a chemical test without first consulting with a lawyer constitutes a refusal to submit to the test under the implied-consent law, the court held, at page 388 of the reported case:
“Ohio statutes afford a greater right to consult with an attorney than either the Ohio or federal constitutions. We find no error in a finding by a trial court that a good-faith request of an arrested person to exercise his statutory right ... to call an attorney, before submitting to a chemical test ... does not constitute a refusal to take such test, where the delay occasioned by the exercise of that statutory right will not unduly or unreasonably delay the administering of the test. Whether or not the request to consult the attorney is made in good faith and whether the exercise of the right will unreasonably delay administering the test are factual issues to be determined from the facts and circumstances of each case.”
*293But in this instance the trier of fact, the hearing officer, found:
“Mr. Kuntz would not say if he would or would not submit to the test. He wanted to make a call or talk to his attorney first. The test procedures were started and when the time came to give a sample of his breath Mr. Kuntz did not blow into the machine.”
The hearing officer concluded:
“I find Mr. Kuntz failed to submit to the chemical test offered to him as directed by Deputy Nodland and as Mr. Kuntz agreed to do when he accepted his North Dakota driver’s license and that’s explained in 39-20-01 [N.D.C.C.] ...”
This is, of course, an appeal from the decision of an administrative agency and we do not make independent findings of fact or substitute our judgment for that of the agency, but determine only whether a reasoning mind could have reasonably determined that the factual conclusions were supported by the weight of the evidence. See, e.g., Christenson v. Job Service, 399 N.W.2d 300 (N.D.1987).
It appears evident, however, that the majority is deciding as a matter of law that the refusal to allow the person arrested to consult with an attorney prior to determining whether or not to submit to the test is not a refusal to be tested. Although this may be contrary to the weight of authority, at least two cases cited in the majority opinion support that conclusion, albeit with little discussion of the rationale or logic by which those courts reached such a conclusion. Thus in Prideaux v. State Dept. of Public Safety, 310 Minn. 405, 247 N.W.2d 385, 395 (1976), after an extensive discussion of whether or not the right to counsel prior to deciding whether or not to submit to the test was constitutional or statutory (and deciding that it was statutory), after deciding that a limited right did exist, and after deciding to confine the impact of its holding to any case then pending rather than to cases previously decided, the court simply concluded:
“In the instant case the driver asserted his right to counsel and that right was denied. Therefore, under the reasoning of this opinion, he is not bound by his refusal and his license must be restored.”
So, too, in Fuller v. State, Dept. of Transp., 275 N.W.2d 410, 411 (Iowa 1979), the Iowa court, extending its holding in State v. Vietor, 261 N.W.2d 828 (Iowa 1978), to the civil proceeding involving suspension of a license for refusal to submit to the test, indicated that the rationale of Vietor was that a defendant could not be required to make his election until he had consulted counsel and that if a defendant was denied this statutory right on request, he could not be held to have refused a chemical test. The court concluded by stating:
“If there was no refusal, the premise upon which the state may revoke a license ... is missing.”
In Vietor, supra, at page 832, the Iowa court stated:
“There remains the question as to what remedy should attend a violation of § 755.17. We said in State v. Heisdorffer, 164 N.W.2d [173] at 176, a violation of the statute should not make the evidence thus obtained inadmissible. Both Prideaux and Gursey [People v. Gursey, 22 N.Y.2d 224, 292 N.Y.S.2d 416, 239 N.E.2d 351 (1968) ] espouse an exclusionary rule. We believe that conclusion is the correct one, and we now hold evidence of Irvin’s refusal to submit to a chemical test is not admissible at his OMVUI trial.” 4
We have been given no particular rationale as to why the exclusionary rule should *294apply in these civil proceedings. I am unwilling to accept what seems to be almost an involuntary reaction that the exclusionary rule is the end-all conclusion for every instance of police misconduct. Recent generations may have come to accept that the automatic exclusion of evidence is constitutionally required in each and every instance of police misconduct because they have either forgotten or have not been taught that the rule is simply a prophylactic rule fashioned by the United States Supreme Court in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), but not applied to State and local law-enforcement officers until Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) [after this writer had received his law degree]. The rule has come under criticism in some of the opinions of this court [see State v. Klevgaard, 306 N.W.2d 185, 190 (N.D.1981), and State v. Johnson, 301 N.W.2d 625, 629 (N.D.1981)] and in at least one article in the North Dakota Law Review [see Lockney, An Open Letter to the North Dakota Attorney General Concerning Search and Seizure Law and the Exclusionary Rule, 62 N.D.L.Rev. 17 (1986) ].
But whatever may be the debate about the application of the exclusionary rule to criminal proceedings, it appears to me that we should be cautious about extending it to civil proceedings in which the right denied is of statutory, not constitutional, origin, and particularly where the extension appears to be a “knee-jerk” reaction without data, discussion, or rationale to support it.5
I submit there are alternatives to the exclusionary rule should police officers deny arrested persons their right to talk with counsel. For starters, Section 12.1-11-06, N.D.C.C., makes it a Class A misdemeanor for any public servant to knowingly refuse to perform any duty imposed upon him by law, and the majority obviously holds that Section 29-05-20, N.D.C.C., not only gives a statutory right to a person arrested to visit with counsel but also creates a concomitant duty upon the custodial officer to allow such visitation. Additionally, the actions for damages against individuals who deny rights to others are not unknown in our jurisprudence.
Finally, I am concerned with the application of the result achieved by the majority opinion. Although the majority attempts to distinguish Agnew v. Hjelle, 216 N.W.2d 291 (N.D.1974), the Agnew court stated, at page 298:
“Before we conclude our opinion, we think it proper to comment on the civil nature of an Implied Consent Statute as it relates to revocation of drivers’ licenses for failure to take a chemical test to determine alcoholic content of blood. As we said in Borman [Borman v. Tschida, 171 N.W.2d 757 (N.D.1969) ], proceedings under the Implied Consent Law are civil in nature. Courts which have considered the question generally hold that refusing to submit to a chemical test until counsel is consulted is an unreasonable refusal, there being no right to counsel in a civil proceeding. [Citations omitted.]”6
Although the right to counsel pursuant to Section 29-05-20, N.D.C.C., may not have been considered in Agnew, it nevertheless appears that prior to this time a police officer would justifiably conclude that there existed no right of an arrested person to contact counsel before deciding *295whether or not to submit to the test.7 Thus, as a practical matter, the majority opinion reverses Agnew. It was in just such a situation that the courts upon which the majority relies gave only some prospective application to their decisions. See Prideaux, supra, 247 N.W.2d at 398 (on Petition for Rehearing), and Vietor, supra.
For the reasons stated herein I would affirm the judgment of the district court affirming the decision of the State Highway Commissioner.
. The majority opinion does not discuss the argument made by counsel for the Commissioner that Section 29-05-20 which states that "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” gives the attorney the right to visit the person arrested, not the person arrested the right to have counsel visit him. Although I believe the statute is grammatically susceptible of such a construction, I prefer the one placed upon it by the majority opinion.
. Although it is not entirely clear to me from the majority opinion, I do not understand the majority opinion to hold that the right is, at the stage of the proceedings with which we are concerned, a constitutional right. Many of the very cases upon which the majority relies discuss the issue of the constitutional right to counsel but specifically state they premise their right to counsel on the statute, not the Federal or State Constitution. See, e.g., State v. Vietor, 261 N.W.2d 828 (Iowa 1978); Prideaux v. State Dept. of Public Safety, 310 Minn. 405, 247 N.W.2d 385 *292(1976); Siegwald v. Curry, 40 Ohio App.2d 313, 319 N.E.2d 381 (1974).
. Prior to 1983, proof of refusal to submit to the test was admissible in civil or criminal proceedings only if the person arrested first testified. See 1983 N.D.Sess.Laws Ch. 415, Sec. 30. Presumably the term "civil proceeding" did not include a hearing on a license revocation for failure to submit to the test.
. It appears to me that a better argument could be made that the refusal is not an "informed refusal," i.e., the opposite of an "informed consent” used in the medical field. 'Informed consent” is defined by Black’s Law Dictionary as a "person’s agreement to allow something to happen (such as surgery) that is based on a full disclosure of facts needed to make the decision intelligently, i.e., knowledge of risks involved, alternatives, etc.” In their truncated discussion of the rationale for their conclusion, some of the courts cited in the majority opinion may attempt to announce such a rule, but I agree with the Vietor court that they are really espousing an exclusionary rule.
. Compare the rationale in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), in which the Court discussed at length its reasons for extending the exclusionary rule to the States with the dearth of data or rationale in the cases upon which the majority opinion relies and in the majority opinion itself. Lest it be argued that the same rationale and reasoning used in Mapp extends to this case involving a statutory right in a civil proceeding, I am unwilling to accept that logic.
. The trial court in affirming the decision of the Commissioner indicated it was clear from State v. Fields, 294 N.W.2d 404 (N.D.1980), that the officers were not required to allow Kuntz to call counsel. I agree with the majority opinion that Section 29-20-05, N.D.C.C., was not raised in that case. Furthermore, the discussion in Fields centered on the "confusion" which might be created by the giving of the Miranda advisory and the arrested person’s right to remain silent vis-a-vis the consequences of his failure to submit to the test. See also Hammeren v. North Dakota State Highway Com’r, 315 N.W.2d 679 (N.D.1982).
. It may be that it is more appropriate to apply an exclusionary rule in the first instance in which a change in the law is announced, such as here, because the officer may have as a ready defense to any criminal action or civil action for damages the fact that he relied on prior precedent. I do not, however, read the majority opinion as being limited only to this case.