(dissenting).
Had I been a member of the Minnesota legislature in 1984, it is quite possible that I would have voted against the law that today’s majority holds violative of the Minnesota Constitution. My role, however, as a judge of the Minnesota Supreme Court is not to decide whether the legislature’s policy decision would have been my legislative choice. It is not our opinion of the wisdom of Minn.Stat. § 169.123, subd. 2(b)(4) (1990), which is at issue here; the question is whether the statute rises to the minimum requirements of article I, section 6 of the Minnesota Constitution, and I sharply disagree with the majority’s approach to and analysis of this question. My position can be stated simply:
(a) Less than six years ago this court decided that a drunk driving arrestee has “no right, statutory or constitutional,” to consult counsel before deciding whether to comply with the statutory obligation to submit to chemical testing. Nyflot v. Commissioner of Public Safety, 369 N.W.2d 512, 513 (Minn.1985) (two judges dissenting), appeal dismissed, 474 U.S. 1027, 106 S.Ct. 586, 88 L.Ed.2d 567 (1985). That decision, which comports with recognized principles of constitutional law, constitutes controlling authority in this case.
(b) Denying what seems to me the clear import of Nyflot, the majority has neither articulated a satisfactory rationale for disregarding that decision nor proposed a sound basis for interpreting the Minnesota Constitution more broadly than the United States Supreme Court has interpreted the corresponding provision of the United States Constitution. Bluntly stated, the majority has made no attempt to explain why a person arrested for drunken driving is entitled to special treatment: until today at least, no one arrested for any other crime has been accorded a constitutional right to consult a lawyer before submitting to a search.
The right to the assistance of counsel recognized by the Minnesota Constitution corresponds almost exactly with that set out in the sixth amendment to the United States Constitution. The sixth amendment to the United States Constitution provides:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by *839law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.
Article I, § 6 of the Minnesota Constitution, before being amended in 1988, provided:
In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the county or district wherein the crime shall have been committed, which county or district shall have been previously ascertained by law. The accused shall enjoy the right to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor and to have the assistance of counsel in his defense.1
From the very beginning it has been clear that the drafters of these (for all practical purposes) identical provisions understood that the right to counsel ensured by these provisions applied only to “criminal prosecutions.” The term “criminal prosecution” is a legal term of art then and ever since used to refer not to the investigative, evidence-gathering phase of a proceeding, nor to all proceedings taking place after a suspect is arrested, but only to those proceedings which occur after the state has committed itself to prosecuting the suspect by formally charging the suspect with a crime. The right to counsel does not attach until the state has formally made the suspect a defendant, usually either by indictment or by filing a formal complaint or what in some jurisdictions is called an “information.”
There is, moreover, a second prerequisite to the attachment of the constitutional right to counsel: the stage of the prosecution must be a “critical stage.” See, e.g., United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973), and State v. Higginbotham, 298 Minn. 1, 212 N.W.2d 881 (1973) (recognizing that while the “core” purpose of the right to counsel guaranteed by these provisions was to assure the defendant assistance of counsel at a criminal trial, the right contemplated by the provisions includes assistance at all “critical stages” of the proceeding following formal commencement of the criminal prosecution).
The presence of one but not the other prerequisite is not enough. That a criminal prosecution has been formally commenced is not enough to invoke the right to counsel if the stage of the proceeding is not a “critical stage.” State v. Higginbotham, 298 Minn, at 3, 212 N.W.2d at 884. On the other hand, the fact that the stage might otherwise be deemed a “critical stage” does not mean that the suspect has a constitutional right to counsel if the government has not yet formally commenced a criminal prosecution of that suspect. Thus, it has been held that before being formally charged, a suspect has no right to consult a lawyer before submitting to a search or the drawing of a blood sample or before appearing in a lineup.2 Nor does a defendant *840formally charged have a right to counsel at a photographic display or when providing a handwriting exemplar because neither event is a “critical stage” of the prosecution.3
There is, of course, a “Miranda right to counsel” which a suspect who is in custody but who has not yet been formally charged may assert before being interrogated. Miranda v. Arizona, 384 U.S. 436, 471, 86 S.Ct. 1602, 1626, 16 L.Ed.2d 694 (1966). But the court-created Miranda right to counsel is not based on the sixth amendment; it is specifically designed to vindicate the fifth amendment privilege against self-incrimination.4 Furthermore, the defendant in the present case does not (nor could she) assert a Miranda right to counsel, which applies only to custodial interrogation and has nothing to do with whether an accused has a right to counsel before deciding whether to submit peaceably to a police search.5 South Dakota v. Neville, 459 U.S. 553, 564 n. 15, 103 S.Ct. 916, 923 n. 15, 74 L.Ed.2d 748 (1983).
Based on this bedrock of recognized constitutional law, this court has heretofore resisted the temptation to declare that a person arrested for DWI has a constitutional right to consult counsel before deciding whether to submit to chemical testing. In State v. Palmer, 291 Minn. 302, 305-07, 191 N.W.2d 188, 190 (1971), we expressly rejected the argument6 that a driver has a right under the sixth amendment and the corresponding provision of the Minnesota Constitution to consult counsel before deciding whether or not to provide a breath sample: “It is well settled that under the Federal and Minnesota Constitutions the accused, in all criminal prosecutions, shall enjoy the right to have assistance of counsel in his defense,” but the court concluded that the constitutional right to counsel did not apply in proceedings for revocation of a driver’s license. Three justices dissented, but only on statutory grounds; the dissen*841ters expressly agreed with the majority that “this is not a constitutional matter * * 291 Minn, at 309, 191 N.W.2d at 192 (Otis, J., dissenting).
Subsequently, in Prideaux v. State, Dept. of Public Safety, 310 Minn. 405, 247 N.W.2d 385 (1976), the court took issue with Palmer, observing that the “civil” label should not be allowed to obscure the quasi-criminal consequences of revocation to the ordinary citizen and stating that “the decision whether to take or refuse chemical testing is arguably a ‘critical stage’ in the driving-under-the-influence proceeding.” 310 Minn, at 411, 247 N.W.2d at 389. Nevertheless, the court expressly refrained from deciding the case on constitutional grounds and expressly declined to overrule Palmer, Prideaux, 310 Minn, at 414, 422, 247 N.W.2d at 391, 395; instead, the Pri-deaux court limited its decision to statutory grounds. In Prideaux it was held that Minn.Stat. § 481.10 gives a driver arrested for DWI a limited statutory right to consult counsel before deciding whether to submit to chemical testing.7 The court declared, “The importance of a driver’s license and the binding decisions which must be made by the driver asked to submit to chemical testing make the chemical-testing process a ‘proceeding’ within the meaning of section 481.10 before which consultation with counsel is to be accorded.” 310 Minn, at 419, 247 N.W.2d at 393.8
Apparently in response to the court’s explicit recognition that if the implied consent statute forbade a limited right to counsel before chemical testing, that statute, which is later and more specific in its scope, would control over the limited statutory right accorded by section 481.10, id., the legislature signified its agreement with the holding in Prideaux by expanding the implied consent advisory to include a statement to the effect that the driver had a limited right to consult with an attorney. In 1984, however, the legislature amended the advisory by inserting a new warning that Minnesota law “requires” the person to submit to testing and by adding a statement that “after submitting to testing” the driver has a right to consult with an attorney (and to have additional tests made by someone of the person’s own choosing).
The effect of the 1984 amendment was tested in Nyflot v. Commissioner of Public Safety, 369 N.W.2d 512 (Minn.1985), appeal dismissed, 474 U.S. 1027, 106 S.Ct. 586, 88 L.Ed.2d 567 (1985). The commissioner of public safety contended that, notwithstanding the dictum to the contrary in Prideaux, Palmer was still good law. In response Nyflot argued that the officer’s invocation of the implied consent law to require a drunk driving arrestee to submit to chemical testing constituted a “critical stage” of the prosecution and, in effect, asked us to overrule Palmer and to recognize a constitutional right to counsel. This court fully considered this issue and all the other issues raised and held that “a driver arrested for DWI has no right, statutory or constitutional, to consult with counsel before deciding whether to submit to chemical testing.” 369 N.W.2d at 513 (emphasis supplied). Noting that at the time Pri-deaux was decided, there was still some dispute about when a prosecution was commenced for purposes of attachment of the constitutional right to counsel, the court concluded that the constitutional right to counsel does not attach “until judicial pro*842ceedings are formally commenced (by indictment, complaint or substitute for complaint).” 369 N.W.2d at 616-16.
It is my understanding that the majority’s position here is that the state constitutional issues have not previously been decided, but the fact of the matter is that the court did consider all of the issues raised in Nyflot and did decide, inter alia, that implied consent testing before a person is formally charged does not constitute a “critical stage” of a “criminal prosecution” and did decline to overrule Palmer. Quite frankly, in my judgment, a fair reading of the opinion, the two special concurrences, and the dissent in Nyflot demands recognition that this court fully understood at that time that it was specifically holding under both federal and state constitutions that there was no constitutional right to consult counsel before deciding whether to submit to chemical testing under the implied consent law. Justice Scott, concurring specially, declared that only a constitutional restriction could override the legislative intention to preclude consultation with a lawyer until after the driver had submitted to testing. Because testing for blood alcohol is a matter of search and seizure and because “[t]here is no constitutional right to consult an attorney before a search is conducted,” he concluded that the statute was constitutionally sound. 369 N.W.2d at 518-19. Justice Kelley, in his special concurrence, took the position that the driver’s revocation action is civil in nature and that therefore Nyflot’s arguments with respect to the right to counsel under both the state and federal constitutions and the constitutional discussion in both the majority and dissenting opinions were irrelevant because the constitutional right to counsel arises only in the event of criminal prosecution. 369 N.W.2d at 518-19. In his dissent Justice Yetka vigorously argued that chemical testing is a “critical stage” of a “criminal prosecution” which triggers one’s right to counsel — that is, the precise argument rejected in Nyflot but adopted in today’s majority decision — and asserted that if the driver does not have such a right under the federal constitution he does have such a right under the state constitution. 369 N.W.2d at 519-25. Under the circumstances, it seems to me that it defies logic to contend that the holding in Nyflot that “a driver arrested for DWI has no right, statutory or constitutional, to consult with counsel before deciding whether to submit to chemical testing” addressed only the existence of a right under the federal constitution.
Not only does the Nyflot decision constitute controlling authority in the present case, but that decision comports with recognized principles of constitutional law. The sixth amendment to the United States Constitution and the corresponding provision of the Minnesota Constitution provide defendants in “criminal prosecutions” certain prosecution-related rights, rights which are invoked by the commencement of judicial proceedings. The police, by arresting a person for drunk driving, do not commit the state to prosecuting that person for driving while intoxicated. At the time of the arrest the officer has no knowledge whether the arrestee will be prosecuted for DWI. Neither does the police officer or trooper have authority to institute a prosecution but only to report the results of the test “to the commissioner of public safety and the authority having a responsibility for prosecution of misdemeanor offenses for the jurisdiction in which the acts occurred.” Minn.Stat. § 169.123, subd. 4 (1990); see also Minn. R.Crim.P. 4.02, subd. 3. The Minnesota Rules of Criminal Procedure provide that “the complaint, tab charge9 and indictment *843are the only accusatory pleadings by which a prosecution may be initiated and upon which it may be based.” Comment to Minn.R.Crim.P. 2. Accordingly, it seems clear to me that the court correctly determined in Nyflot that no “criminal prosecution” had been commenced at the time the officer invoked the provisions of the implied consent law and gave Ms. Nyflot the advisory and that, therefore, neither the right to counsel provided by the United States Constitution nor the right to counsel contained in the corresponding provision of the Minnesota Constitution, was activated.
Moreover, as the court pointed out in Nyflot, the legislature has the authority to require, as it has done, a person suspected of driving while intoxicated to submit to the testing provided pursuant to the implied consent law. 369 N.W.2d 512. Implicit in the determination that “there being no right under the constitution to consult with counsel in this context, the decision whether or not to provide that right is one for the legislature to make,” is recognition of the principle explicated in the Scott concurrence that testing for blood alcohol is a matter of search and seizure and that there is no constitutional right to consult a lawyer before a search is conducted. Id. Although the majority opinion in Nyflot did not address the question whether chemical testing for blood alcohol concentration was a “critical stage”, the decision comports with Justice Brennan’s declaration in Gilbert v. California, 388 U.S. 263, 267, 87 S.Ct. 1951, 1953, 18 L.Ed.2d 1178 (1967), that “putting aside the fact that the handwriting exemplars were taken before the indictment,” the taking of the exemplars was not a “critical stage” entitling the defendant to assistance of counsel because there was “minimal risk that the absence of counsel might derogate from his right to a fair trial.” Here, as in Gilbert, there is minimal risk that the absence of counsel at the time of testing will affect the arrestee’s right to a fair trial because, as this court pointed out in Nyflot, an attorney may not ethically advise the driver not to take the test, which is required by law. 369 N.W.2d at 517 n. 3. “In short, what the attorney may tell the driver is what the implied consent advisory tells the driver.” Id.
The majority’s decision to reject Nyflot presents one of those questions by which we, as judges, "define” ourselves and our understanding of our unique role in this system of government by law: When, if ever, is it proper for a judge of this court to vote to overrule a major constitutional decision of this court? 10
Dean Geoffrey R. Stone provides a persuasive analysis of this issue in Precedent, The Amendment Process, and Evolution in Constitutional Doctrine, 11 Harv.J. of L. & Pub.Pol. 67 (1988). Dean Stone rejects the two extreme positions, the position on the one hand that a court should never overrule a prior decision and the position on the other hand that every issue of constitutional law is a question of first impression. Stone then addresses the question by reference to the reasons for overruling a case and lists three reasons as worth discussing.
First is that the prior decision was “based on certain factual premises that have been proven incorrect” and that if the court in the prior case had known what the court now knows it would have reached a different result. Id. at 71. Inasmuch as no one has suggested that Nyflot rests on inaccurate factual premises, the first reason has no application here.
A second, related reason is that the prior decision “was premised on a state of affairs that has changed so much over time” that the court deciding the prior case would itself have reached a different result in the subsequent case in light of the new circumstances. Id. at 71. Neither has this second reason any application in this case:
*844(a) Nothing has happened on the legislative front that would prompt an ovérruler. Indeed, after our decision in Nyflot, the legislature amended the DWI law to make refusal to submit to testing a crime (a gross misdemeanor) if the person has certain prior license revocations, Minn.Stat. § 169.121, subds. 1(a), 3(c) (1989), an amendment the validity of which is decided today in McDonnell v. Commissioner of Public Safety, 473 N.W.2d 848 (Minn.1991) filed herewith.
(b) Neither has anything happened on the constitutional law front to suggest that this court’s decision in Nyflot was erroneous—
(i) The United States Supreme Court dismissed Ms. Nyflot’s appeal for want of a substantial federal question at 474 U.S. 1027, 106 S.Ct. 586, 88 L.Ed.2d 567 (1985). Justice White, joined by Justice Stevens, dissented from the dismissal, arguing that a substantial federal question, on which he did not express an opinion, was raised. Whereas a denial of certiorari says nothing about whether or not the United States Supreme Court agrees or disagrees with the decision below, a dismissal for want of a substantial federal question carries “the same practical consequences as summary affirmance” and “operates as an adjudication that the federal question was properly decided on the merits by the state court.” 16 Wright, Miller, et al., Federal Practice and Procedure § 4014 (1977). I can only assume that our decision in Nyflot on the federal constitutional law issue comports with the thinking of the United States Supreme Court.
(ii) Nor, contrary to what the majority argues, has anything happened on the state constitutional law front to suggest that the Nyflot decision is wrong. The majority says that what has changed since Nyflot is “the development of state constitutional law.” Maj. at 835. Interestingly, in notes 2 and 3 of its opinion the majority approvingly cites scores of decisions in which other states have interpreted their state constitutions more expansively than the United States Supreme Court has interpreted the federal constitution, id. at 830-831, but most of these decisions precededNyflot. Indeed, contrary to the impression created by the majority opinion, the overwhelming majority of courts that have addressed the issue since Nyflot was decided have agreed with the Nyflot holding that there is neither a federal nor a state constitutional right to consult with counsel before deciding whether to submit to testing. See, e.g., State v. Cichowski, 203 Conn. 97, 523 A.2d 503 (1987) (relying on Nyflot in rejecting claim of right to counsel under federal constitution); Brank v. State, 528 A.2d 1185 (Del.1987) (relying on Nyflot in rejecting claim under federal constitution); State v. Hoch, 500 So.2d 597 (Fla.App.1986) (relying on Nyflot in rejecting claim under both federal constitution and state law), pet. for rev. denied, 509 So.2d 1118 (Fla.1987); Commonwealth v. Brazelton, 404 Mass. 783, 537 N.E.2d 142 (1989) (relying on Ny-flot in rejecting claim under both federal and state constitutions); State v. Greene, 128 N.H. 317, 512 A.2d 429 (1986) (rejecting claim under both federal and state constitutions); Commonwealth v. West, 370 Pa.Super. 365, 536 A.2d 447 (1988) (rejecting claim under both federal and state constitutions); In re Kean, 520 A.2d 1271 (R.I.1987) (rejecting claim under both federal and state constitutions); McCambridge v. State, 725 S.W.2d 418 (Tex.App.1987) (relying on Nyflot in rejecting claim under both federal and state constitutions), affirmed, 778 S.W.2d 70 (Tex.Crim.1989), cert. denied, — U.S. —, 110 S.Ct. 1936, 109 L.Ed.2d 299 (1990).
It seems to me that only the membership of this court has changed. Of the six justices in the majority in Nyflot, only two are presently members of the court and one of these has recused from participation in this case.11 The recently appointed seventh justice, who has recused from participation *845here, was the author of the court of appeals’ decision in this case holding that the Minnesota Constitution does not give a driver the right to consult with an attorney prior to deciding whether to submit to a chemical sobriety test, Friedman v. Commissioner of Public Safety, 455 N.W.2d 93 (Minn.App.1990). The two dissenting justices in Nyflot are still members of the court and they have been joined by another new justice. It is undoubtedly the view of these justices that Nyflot was wrong at the time it was decided, but is that a valid basis for overruling Nyflot? I think not. On this, the third basis for overruling a prior constitutional decision, Dean Stone offers the following critical analysis:
[A] justice may conclude that a prior decision was simply “wrong” at the time it was decided. Had he been a justice at the time of the prior decision, he would have voted the opposite way. Now that he has found four other justices who share his view, he will overrule the “wrong” decision. This is the most problematic basis for overruling. Without the justification of either inaccurate factual premises or changed circumstances, the Justice in this situation is merely substituting his judgment for that of his predecessors. And although his predecessors may have no claim to greater interpretive authority than their successors, it is likewise true that the successors have no greater interpretive authority than their predecessors. Why, then, should the view of the successors prevail? Such a basis for overruling substitutes power for principle and generates instability, unpredictability, politicization, and all the other dangers sought to be avoided by the doctrine of precedent.
G. Stone, supra, at 72-73.
It is no doubt true, as the majority asserts, that this state is free to give drunk drivers the right to consult with counsel before deciding whether to fulfill their statutory obligation to comply with the implied consent law. But that does not mean that this court is free to do so. The court is not the state nor do its members constitute a continuing constitutional convention with a “roving commission” to substitute its will for the will of the people as expressed in the words of the state constitution. We are an interpretive body, free to interpret and apply the state constitution but not free, as one commentator has put it, to take the constitution out of constitutional law.12 Heretofore, this court has wisely rejected the majority’s result-oriented approach and has sought to anchor itself in a principled way to the text of the Minnesota Constitution itself, distinguishing those provisions which are identical to provisions of the federal constitution from those provisions which, by their different wording, expressly afford greater protection to the people of Minnesota.13 In this case, however, we are dealing with textually identical provisions.
Neither does contemporaneous history provide a legitimate neutral ground for interpreting article I, § 6 of the Minnesota Constitution more broadly than the sixth amendment to the United States Constitu*846tion. S. Twist & L. Munsil, The Double Threat of Judicial Activism: Inventing New “Rights” in State Constitutions, 21 Ariz.St.Law J., 1005, 1031 (1989). The majority’s evidence that “history” supports its decision consists in large measure of generalities such as that “[t]he right to counsel is a long-established principle in the nation,” maj. at 829, a statement with which no one disagrees but which helps not at all in answering the question of when the right to counsel attaches. The majority also assigns considerable importance to the fact that early on the legislature enacted what is now Minn.Stat. § 481.10, which requires an officer having a suspect in custody to allow the suspect to meet with counsel upon request “before other proceedings shall be had.” Id. at 830. But I am not aware that anyone has ever contended that this statute had the effect of putting a gloss on the right to counsel contained in the Minnesota Constitution — that the statutory reference to “other proceedings” was the equivalent of the constitutional reference to “criminal prosecution.” See, e.g., Palmer, 291 Minn. at 309, 191 N.W.2d at 192 (Otis, J., dissenting). In my opinion, then, history and precedent support the conclusion that our decisions in Palmer and Nyflot comport with the intent of the drafters with respect to the timing of the attachment of the right to counsel pursuant to the state constitution.
Moreover, if the dicta in Prideaux can be said to have posited the equivalency of the statutory “proceedings” and the “constitutional criminal prosecution,” the error of that assumption was corrected in Nyflot. To say now, as does the majority, that the constitutional right to counsel attaches under the Minnesota Constitution at the time of the arrest for drunken driving requires either overruler of Nyflot or a very different definition of the term “criminal proceeding” as it is used in the United States Constitution from the identical provision of the Minnesota Constitution. In either case the perils of the expansionist course on which the majority has today embarked (well illustrated by the string of citations appearing in note 2 of the majority opinion) suggests that very shortly the court will find itself in the position of the sorcerer’s apprentice.
Finally, the majority refuses to recognize that it is according a drunk driving arres-tee special treatment accorded no other criminal arrestee who is required to submit to a search. The majority justifies its position by declaring that it is “more than just a search” to require a person to submit to a breath test because the act of giving a breath sample “could produce the evidence leading to conviction before any trial is even necessary.” Maj. at 837. Obviously, the majority cannot mean that the evidence leads to “conviction before any trial is even necessary.” What the majority must mean is that the evidence seized, i.e., the breath sample, is so incriminating that it is pointless for the defendant to insist on his or her right to trial. But, of course, the same can be said of many other types of evidence discovered and seized during lawful searches conducted in the investigation of other crimes. For example, if police arrest a murder suspect moments after the commission of the offense and swab the suspect’s hands with a chemical substance in order to determine if the suspect recently fired a gun, no one would be heard to argue that the police had to let the defendant speak with counsel first because the test is “more than just a search” and the results of the test “could produce the evidence leading to conviction before any trial is even necessary.” See 2 W. LaFave, Search and Seizure § 5.3(c), at n. 99 (2d ed. 1987). Similarly, if police arrest a suspect moments after a rape is committed and seize the suspect’s underwear in order to subject the underwear to tests for the presence of semen and sperm, no one would be heard to argue that the police had to let the defendant speak with counsel first because the search resulting in the seizure' of the underwear is “more than just a search” and the results of the testing of the underwear “could produce the evidence leading to conviction before any trial is even necessary.”
The issue is not whether anyone should be denied the right to counsel but when that right attaches and to what stages of a *847criminal prosecution the right applies. Under a long line of decisions of both the United States Supreme Court and this court, the right to counsel attaches only to “critical stages” of a “criminal prosecution.” 14 Although persons arrested for murder, rape, arson, and other heinous crimes have a Miranda right to counsel when subjected to custodial interrogation, they do not have a sixth amendment right to counsel before deciding whether to submit to a search. What the majority has done, theréfore, is to hold that under the Minnesota Constitution a drunk driving ar-restee is entitled to special treatment, treatment that is not and has never been accorded by either the United States Constitution or the Minnesota Constitution to persons arrested for other kinds of offenses.
KEITH, Chief Justice(dissenting).
I concur in the dissent of Justice Coyne. The majority’s holding represents a dramatic departure from this court’s and the federal courts’ right to counsel precedent involving DWI and other offenses, and Justice Coyne has articulated well the special treatment the majority accords to DWI suspects. I write separately to emphasize my concern about an anomaly created by the majority’s holding today. The majority provides for attachment of the right to counsel at the time of arrest for misdemeanor and DWI offenders, whereas under our established caselaw, felony and other gross misdemeanor offenders are not able to invoke their right to counsel until they appear in court for the first time.
The majority discards a workable, sensible, and bright-line test for the attachment of the right to counsel derived from a nearly identical clause of the federal Constitution. The United States Supreme Court has recognized that the sixth amendment right to counsel attaches at critical stages of the prosecution and “only at or after the initiation of adversary judicial proceedings against the defendant.” United States v. Gouveia, 467 U.S. 180, 187-89, 104 S.Ct. 2292, 2296-98, 81 L.Ed.2d 146 (1984) (emphasis added). The majority departs from the federal “commencement of adversary judicial proceedings” requirement and instead emphasizes that, if the offense may be tab-charged under the Minnesota Rules of Criminal Procedure, the criminal prosecution commences when the police arrest the suspect. In addition to muddying this court’s state constitutional law and criminal procedure jurisprudence, the majority misconstrues the tab-charging procedure and creates an unjustified distinction between attachment of the right to counsel in misdemeanor and DWI cases and in felony and other gross misdemeanor cases.
I agree with Justice Coyne that the Ny-flot court correctly determined that the criminal prosecution has not commenced at the time the officer reads the implied consent advisory. The DWI prosecution does not commence until the suspect appears in court and agrees to the tab-charging procedure, i.e., the in-court reading of a brief statement of the offense as a substitute for the complaint, or, if the defendant demands a complaint, until the complaint is issued. Minn.R.Crim.P. 4.02, subd. 5(3). The flaw in the majority’s reasoning occurs in its statement that “[t]he ticket or tab charge is the functional equivalent of a complaint.” The tab charge is a substitute for a complaint in misdemeanor and gross misdemeanor DWI cases; the issuance of the ticket alongside the highway is not.
To the extent the majority places significance on its view that DWI proceedings are formally commenced upon the issuance of the ticket at the roadside, the majority creates contradictory rules for when the right to counsel attaches in felony and gross misdemeanor cases in contrast to misdemeanor and DWI cases. The state may initiate a prosecution by tab charge for misdemeanor offenses and for gross misdemeanor DWI offenses. Minn.R.Crim.P. *84817.01. If ticketing a suspect for an offense that may be tab-charged triggers the attachment of the right to counsel under Minn. Const, art. 1, § 6, misdemeanor offenders and DWI offenders benefit from the right to counsel from the point of arrest. At the same time, defendants who are arrested for the most serious crimes do not have the right to counsel until they appear in court. I do not believe the federal or the Minnesota constitutions require this result. For this reason and the reasons stated in Justice Coyne’s opinion, I dissent.
. A 1988 amendment overturned this court’s decision in State v. Hamm, 423 N.W.2d 379 (Minn.1988), where this court interpreted the above provision as mandating 12 person juries in misdemeanor and gross misdemeanor prosecutions.
As amended, the provision now reads:
In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the county or district wherein the crime shall have been committed, which county or district shall have been previously ascertained by law. In all prosecutions of crimes defined by law as felonies, the accused has the right to a jury of 12 members. In all other criminal prosecutions, the legislature may provide for the number of jurors, provided that a jury have at least six members. The accused shall enjoy the right to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor and to have the assistance of counsel in his defense.
. A suspect has no right under these provisions to consult with an attorney as a prerequisite to giving consent to search, at least before he has been formally charged. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); 3 W. LaFave, Search and Seizure § 8.2(k) (2d ed. 1987). A suspect does not have a right to consult with counsel before deciding whether to comply with an order, lawful under the fourth and fifth amendments, to allow a *840trained technician to remove a blood sample as part of a precharge criminal investigation. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). While an accused has a right to counsel at a post-charge lineup, Moore v. Illinois, 434 U.S. 220, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977), and United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), the suspect does not have a right to counsel at a lineup held before charges have been formally filed, Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), State v. Eppler, 362 N.W.2d 315, 317 n. 1 (Minn.1985), and State v. Hyvare, 354 N.W.2d 835, 836 (Minn.1984).
. A suspect does not have a right to counsel at a photographic display, even a postindictment photographic display, because such a display does not fit the test of what is a "critical stage” in the way that a post-charge lineup fits the test. United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973), and State v. Higginbotham, 298 Minn. 1, 6, 212 N.W.2d 881, 884 (1973). An accused has no right to counsel when lawfully directed to provide a handwriting exemplar, even after issuance of a formal charge, because the taking of such an exemplar is not a "critical stage” of the prosecution. Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967).
. The distinction between the right to assistance of counsel guaranteed by the sixth amendment to the federal constitution and its Minnesota counterpart and what is called the fifth amendment Miranda right to counsel is well summarized in the following excerpt from this court’s recent unanimous decision in State v. Ronnebaum, 449 N.W.2d 722, 724 (Minn.1990):
The sixth amendment right to counsel attaches once the prosecution of the defendant is formally commenced, usually by the filing of the complaint. United States v. Gouveia, 467 U.S. 180, 187, 104 S.Ct. 2292, 2296, 81 L.Ed.2d 146 (1984). What some refer to as the fifth amendment right to counsel is a court-created right to counsel as part of the Miranda safeguards in connection with custodial interrogation. Id. at 188 n. 5 [, 104 S.Ct. 2297 n. 5]; Michigan v. Tucker, 417 U.S. 433, 444, 94 S.Ct. 2357, 2363, 41 L.Ed.2d 182 (1974). That right to counsel attaches only when a suspect invokes the right during custodial interrogation. Thus, a suspect has no right to counsel, even if he asks for it, if no charge has been filed against him and if he is not "in custody.” State v. Murphy, 380 N.W.2d 766, 769-70 n. 2 (Minn.1986) (addressed the issue under both federal and state constitutions).
. One has, of course, no right to resist a search or arrest, even an illegal one, and one can be prosecuted for any criminal offense committed in resisting a search or an arrest. City of St. Louis Park v. Berg, 433 N.W.2d 87, 89-91 (Minn.1988). See also 2 J. Cook, Constitutional Rights of the Accused § 7(3) (2d ed. 1986).
. See page 6 of appellant’s brief in Palmer on file at State Law Library.
. Minn.Stat. § 481.10 provides in pertinent part: "All officers or persons having in their custody a person restrained of liberty upon any charge or cause alleged, * * * 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 the attorney * * *.”
. In Prideaux the court added that in this context the statutory right to counsel would 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.” 310 Minn, at 421, 247 N.W.2d at 394.
Subsequently, in State, Dept. of Public Safety v. Kneisl, 312 Minn. 281, 251 N.W.2d 645 (1977), this court expanded upon this aspect of Pri-deaux, holding that the arrested person’s limited statutory right to counsel in implied consent cases includes the right to a private conference with the attorney at the jail before he/she decides whether to submit to testing if the attorney, in response to the person's phone call, arrives at the jail in time to permit the administration of a valid test.
. A tab charge is a time-saving alternative which in a typical case permits the prosecuting authority to commit the state to prosecute a person for misdemeanor offense without filing a complaint. Minn.R.Crim.P. 4.02, subd. 5(3) provides as follows:
If there is no complaint made and filed by the time of the defendant’s first appearance in court as required by this rule for a misdemeanor charge or a gross misdemeanor charge under Minn.Stat. § 169.121 or Minn. Stat. § 169.129, the clerk shall enter upon the records a brief statement of the offense charged including a citation of the statute, rule, regulation, ordinance or other provision of law which the defendant is alleged to have violated. This brief statement shall be a sub*843stitute for the complaint and is referred to as a tab charge in these rules.
(Emphasis supplied).
. Those decisions cited in footnote 6 of the majority opinion (maj. slip op. at 14) are, of course, inapposite to this question; while they represent the evolution of the common law governing civil actions, none of them overrules a major constitutional decision of this court.
. In an analogous situation involving a member of this court who found it necessary to recuse we declined, "out of courtesy” to that justice, to reexamine at that time a prior decision in which the justice had participated; in other words, we deferred reexamination until such time as the full court could address and decide the issue. State v. Schwartz, 447 N.W.2d 422, 429 n. 6 (Minn.1989).
. C. Wolfe, How the Constitution Was Taken Out of Constitutional Law, 10 Harv.J. of L. & Pub.Pol. 597 (1987).
. Compare State v. Fuller, 374 N.W.2d 722, 726-27 (Minn.1985), in which we said that while it is "axiomatic” that we may interpret our state constitution to offer greater protection of individual rights than the federal constitution, that "does not mean that we will or should cavalierly construe our constitution more expansively than the United States Supreme Court has construed the federal constitution. Indeed, a decision of the United States Supreme Court interpreting a comparable provision of the federal constitution that, as here, is textually identical to a provision of our constitution, is of inherently persuasive, although not necessarily compelling, force.” and State v. Murphy, 380 N.W.2d 766, 769-70 n. 2 (Minn.1986) (interpreting provisions of Minnesota Constitution dealing with self-incrimination and right to counsel the same way the United States Supreme Court had interpreted it in identical language in fifth and sixth amendments of federal constitution) with State v. Hershberger, 462 N.W.2d 393 (Minn.1990) (interpreting provision of state constitution precluding interference with religious freedom as providing individuals with greater protection than that provided by the first amendment to federal constitution). See also M. Solimine & J. Walker, State Court Protection of Federal Constitutional Rights, 12 Harv.J. of L. & Pub.Pol. 127, 152 (1989).
. The majority argues that "We have held that a ‘ticket or tab charge’ is the functional equivalent of a complaint in a DWI setting, but our holding does not go beyond that.” Maj. at 837. This, however, ignores the fact that ticketing (that is, arresting) a person for DWI does- not constitute the filing of the tab charge, thereby formally initiating a prosecution. See discussion at pages 842-843 as well as at footnote 9 of this dissent. Dissent at 842-843.