(dissenting). I think that where, as here, there was deliberate misconduct on the part of law enforcement officers, we should implement a prophylactic rule by which the complaint against the defendant is dismissed. See Commonwealth v. Manning, 373 Mass. 438, 443-445 (1977). “It cannot be asserted too often that the [government] must ‘take care to behave itself ” (citation omitted). Commonwealth v. Felton, 16 Mass. App. Ct. 63, 66 (1983).
As the majority opinion points out, the cases of the Supreme Judicial Court have established that a defendant has no statutory or constitutional right to have the police administer a breathalyzer test to him. Nevertheless, it is still the general policy in this Commonwealth to encourage persons arrested for drunk driving to take the test. G. L. c. 90, § 24(1)(f). It is worth noting that it appears that the defendant in this case did not actually refuse to take the test. The defendant’s attorney testified that, when asked whether he would take the test, the defendant replied that he would “do what my attorney tells me to do.” When the attorney indicated that he needed to speak with the defendant privately before he could let the booking officer know of the decision, the officer indicated that a private conference was not possible, that the response given would be deemed to be a refusal, and that the officer at that point signed the refusal form. Similarly, the booking officer testified that the defendant stated that he could not make a decision to take the test until he was given an opportunity to consult privately with his attorney. The officer indicated that a conference “would not be possible and that his not taking the test would be considered a refusal.” The officer also testified that the attorney protested that “it was not a refusal.” I do not think there is any question that the booking officer did not make much of an attempt to get a breathalyzer test in this case. The least I can say is he gave up too easily; at most, he may have effectively prevented the defendant from taking the test.1 Com*509pare Commonwealth v. Alano, 388 Mass. 871, 872 (1983) (defendant consented to test; all three breathalyzer machines at station were in disrepair; shift commander denied arresting officers’ request to transport defendant to working machine).
There is, of course, no indication that the defendant in this case was attempting a stalling maneuver, perhaps delaying a test until he felt he could pass it. The attorney arrived at the station within half an hour after the defendant was arrested, and the maximum delay attributable to the requested private conference (if the two-way mirror was not used) would have been twenty minutes or so.2 2 Even if we were to accept the lame excuse the police offered for their initial refusal to allow the attorney to confer with the defendant, nothing has been presented, nor can anything be put forth, that would justify or excuse the second denial of access. See Commonwealth v. Mahnke, 368 Mass. 662, 692 (1975) (“police may not thwart counsel who seeks to confer with a client”), cert. denied, 425 U.S. 959 (1976). I firmly believe that any unjustified intentional interference with the attorney-client relationship in this day and age calls for severe and prompt measures by the judicial system, particularly in situations, such as the present, where it is safe to assume no administrative disciplinary action was taken against the officers involved in this outrageous and needless power play.
We cannot constantly warn and then continually excuse (e.g., by finding no apparent prejudice) such a blatant infringement of the right to counsel. Cf. Glasser v. United States, 315 U.S. 60, 76 (1942) (“[t]he right to have the as*510sistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial”). I share the frustration of the motion judge, who noted in his memorandum and order allowing the motion to dismiss that he was allowing the motion because he was “unable to fashion a more appropriate remedy,” and I am sceptical that the majority’s comment on the “impropriety” of the police conduct in this case will serve to curb similar future abuses. I think the time has come to put teeth in our bite.3 I accordingly would uphold the trial judge’s allowance of the defendant’s motion to dismiss.
It may not even be possible for attorneys to avoid the situation presented in this case by addressing the issue of whether to take a breathalyzer test in the first phone call they receive from an arrested cli*509ent. See Commonwealth v. Brazelton, 404 Mass. 783, 784 (1989)(officials can require that defendant decide whether to take test before being allowed access to telephone).
If Commonwealth v. Brazelton, 404 Mass. 783 (1989), is grounded in the fear that drunk drivers could take advantage of a right to consult an attorney before deciding whether to take a breathalyzer test, using any such right to delay the test until the results were stale and of more questionable accuracy, id. at 785, surely that “formidable practical problem []” can be left to the jury, who can take any delay into account in weighing the value of a test. See Commonwealth v. Marley, 396 Mass. 433, 438 (1985).
Cf. Levings v. Forbes & Wallace, Inc., 8 Mass. App. Ct. 498, 505 (1979).