(concurring specially).
In concur specially in the court’s opinion because I wish to discuss an issue which I believe is inherent in the case before us. The problem arises from the advice given petitioner by the arresting officer that he was not entitled to consult with an attorney before consenting to or refusing withdrawal of a body specimen. This matter was not dealt with in the court’s opinion since it was not effectively and properly raised for consideration on appeal.
The following portion of the factual recitation set forth in the majority opinion is pertinent:
“Boley took petitioner under arrest to the Johnston police department where they arrived at 1:00 a. m. Petitioner stated he wished to speak to his attorney. Boley advised petitioner he had no right to an attorney during the implied consent proceeding. This request by petitioner and reply by Boley were repeated several times.
“Boley invoked the implied consent procedure requesting a blood test at 1:14 a. m. and a urine test at 1:15 a. m. Defendant stated he would not take any test or make *27any statement until he had consulted his attorney. Thereafter, at approximately 1:20 a. m. petitioner was permitted to and did call his attorney. Both the attorney and petitioner then requested a blood test but Boley refused, stating he had already been through the implied consent procedure and was not obligated to repeat it.”
I am aware of this court’s pronouncement in Swenumson v. Iowa Department of Public Safety, 210 N.W.2d 660, 662 (Iowa 1973), to the effect:
“ * * * It is well established that the state and federal constitutional right to counsel does not apply to an implied consent proceeding. Gottschalk v. Sueppel, 258 Iowa 1173, 1179, 140 N.W.2d 866, 869 (1966) ⅝: * *
The rationale for this position is that the constitutional guarantees only apply to “criminal” proceedings and not to an administrative proceeding like the implied consent procedures.
I concede that the foregoing pronouncement from Swenumson is a correct statement of the law in this state. However, I believe Boley’s advice to the petitioner was too broad, particularly in view of section 755.17, The Code, which provides:
“Any peace officer or other person having custody of any person arrested or restrained of his liberty for any reason whatever, shall, * * *, except in cases of imminent danger of escape, permit that person, without unnecessary delay after arrival at the place of detention, to call, consult, and see a member of his or her family or an attorney of his or her choice. * * * If the person arrested or restrained is intoxicated, or a person under eighteen years of age, the call shall be made by the person having custody. An attorney shall be permitted to see and consult the person arrested or restrained alone and in private at the jail or other place of custody. * * * A violation of this section shall constitute a misdemeanor.”
Section 755.17, in substantially unchanged form, is included in the revised criminal code. Chapter 2, section 421.
This court interpreted the provisions of section 755.17 as follows in State v. Tornquist, 254 Iowa 1135, 1149, 120 N.W.2d 483, 492:
“IV. Section 755.17, Code of 1962, makes it mandatory that any peace officer or other person having custody of any person restrained of his liberty for any reason shall, * * *, permit the person so detained, without unnecessary delay after arrival at the place of detention, to call, consult and see a member of his family or an attorney of his choice. * * *.” (Emphasis supplied).
Recently, the Minnesota Supreme Court in Prideaux v. State Dept. of Public Safety, 247 N.W.2d 385, 388-389 (Minn.1976), faced the question whether an individual in the same predicament as petitioner had a right to consult with counsel prior to deciding whether to submit to a body substance testing procedure. With respect to the constitutional argument advanced therein, the court stated:
“ * * * With virtual unanimity, state courts outside Minnesota have denied such a right, [authorities cited in n. 3] The bases of all these holdings, * * *, have been that driver’s license revocation is a civil proceeding and, as a corollary, that the taking of a chemical test is not a ‘critical stage’ in a criminal prosecution, [authorities cited in n. 4] Upon reflection, we have some doubt as to the continuing vitality of these cases.
“While driver’s license revocation proceedings have been labeled ‘civil’ in nature, * * *, we do not view the ‘civil’ label as dispositive in view of the important constitutional rights which may be involved. First, driver’s license revocation for failure to submit to chemical testing is necessarily and inextricably intertwined with an undeniably criminal proceeding — namely, prosecution for driving while under the influence of an alcoholic beverage. The severe penalty for an unreasonable refusal to permit testing, i. e., mandatory 6-month revocation of a driver’s license, may in many cases impose a greater burden on the driver than conviction of the crime of driving under the *28influence. The obvious and intended effect of the implied-consent law is to coerce the driver suspected of driving under the influence into ‘consenting’ to chemical testing, thereby allowing scientific evidence of his blood-alcohol content to be used against him in a subsequent prosecution for that offense. * * * [citing authority]. The license revocation proceeding thus becomes an arm of the prosecutor in his attempt to gather evidence against the accused for use in criminal prosecution. Moreover, it is used as a means of obtaining evidence at the time of arrest or detention for suspicion of driving under the influence. Only after the driver makes his decision regarding the test does the proceeding divide clearly into its civil and criminal aspects — civil, if testing is refused; criminal, if testing is consented to; or both, if testing is refused, but the prosecutor nonetheless has sufficient evidence to obtain a conviction and elects to do so. Under these circumstances, we cannot see why evidence gathering for prosecution for driving under the influence using implied-consent procedures is any less subject to constitutional scrutiny than other evidence-gathering procedures such as searches, use of informers, or custodial interrogation.
“Second, revocation of a driver’s license for 6 months may have an impact on the ordinary driver at least as devastating as the traditional criminal sanctions of a fine and imprisonment. A driver’s license is no longer a luxury or mere privilege to most citizens, but a prerequisite to earning a livelihood. * * * We cannot allow a ‘civil’ label to obscure the quasi-criminal consequences of revocation to the ordinary citizen.
“Third, the decision whether to take or refuse chemical testing is arguably a ‘critical stage’ in the driving-under-the-influence proceeding. * * * [Lengthy analysis utilizing United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149].” (Emphasis in original).
Following its constitutional analysis, the Prideaux court determined it was not necessary to resolve the issues on constitutional grounds and reversed the license revocation in issue on the basis of a statute, unrelated to the implied consent procedure, which facilitated communications between a defendant and his attorney. After pointing out other cases where it was determined an individual subject to implied consent testing procedures was afforded a limited right to consult with counsel, Siegwald v. Curry, 40 Ohio App.2d 313, 69 Ohio Op.2d 293, 319 N.E.2d 381 and Gooch v. Spradling, 523 S.W.2d 861 (Mo.App.1975), the court, 247 N.W.2d at 394, held as follows:
“We have referred above to a limited right to counsel. Because of the importance of uniformity and clarity in implied-consent procedures, we would indicate specifically the nature of the right and its limitations. Consistent with this opinion, any person who is required to decide whether he will submit to a chemical test * * shall have the right to consult with a lawyer of his own choosing before making that decision, provided that such a consultation does not unreasonably delay the administration of the test. The person must be informed of this right, and police officers must assist in its vindication. The right to counsel will be considered vindicated if the person is provided with a telephone prior to testing and given a reasonable time to contact and talk with counsel. If counsel cannot be contacted within a reasonable time, the person may be required to make a decision regarding testing in the absence of counsel. The above procedure will ensure an adequate opportunity to consult with counsel without in any substantial way delaying the administration of the test.” (Emphasis in original).
As noted, the Prideaux opinion was based upon a statute facilitating a detained person’s access to counsel. The statutory analysis is especially compelling in light of the fact section 755.17, The Code, 1977, is substantially identical to the statutory provisions relied upon by the Prideaux court.
Minn.St. 481.10 is set out in Prideaux, 247 N.W.2d at 391. It provides:
“All officers or persons having in their custody a person restrained of his liberty *29upon any charge or cause alleged, except in cases where imminent danger of escape exists, shall admit any resident attorney retained by or in behalf of the person restrained, or whom he may desire to'consult, to a private interview at the place of custody. Such custodians, upon request of the person restrained, as soon as practicable, and before other proceedings shall be had, shall notify any attorney residing in the county of the request for a consultation with him. Every officer or person who shall violate any provision of this section shall be guilty of a misdemeanor and, in addition to the punishment prescribed therefor shall forfeit $100 to the person aggrieved, to be recovered in a civil action.”
Although there is no constitutional right to the assistance of counsel at an implied consent proceeding, it is my view section 755.17 confers on a person required to decide whether he will submit to a chemical test a right to consult with an attorney of his own choosing before making that decision, provided such a consultation does not unreasonably delay the administration of the test. A state is within its rights in granting a person greater rights under a statute than may be required by either the state or federal constitution.
In my opinion Officer Boley was wrong in the advice he gave petitioner; peace officers in this state should comply with the requirements of section 755.17 in connection with an implied consent proceeding; and that failure to do so might affect the admissibility of evidence bearing on such test.
RAWLINGS, J., joins in this special concurrence.