dissenting.
Kevin Anderson was convicted of driving under the influence based on the results of chemical testing of his blood and urine. Anderson "consented" to let the police take the blood and urine samples only after the police unlawfully transported him to a police station for this purpose, and only after the police repeatedly-and erroneously-told both Anderson and his attorney that the police had the legal right to force Anderson to give these samples, even if he was otherwise unwilling.
My colleagues conclude that, under these cireumstances, Anderson "voluntarily" consented to give the blood and urine samples to the policce-and, thus, the test results were admissible against Anderson.
According to the majority opinion, we can tell that Anderson's decision was "voluntary" because the officers treated Anderson politely, because the officers were acting in good faith (that is, the officers honestly but wrongly believed that they had the authority to force Anderson to provide the blood and urine samples), and because the officers gave Anderson an ample opportunity to speak with his attorney before Anderson acquiesced in the officers' demand. I find these rationales unconvincing.
My analysis of this case begins with the fact that Anderson was subjected to an illegal arrest when the police told him that he was required to submit to blood and urine testing, and when the police then transported him to the police station for this purpose.
The pertinent statute, AS 28.85.081(g), does not authorize the police to demand blood or urine samples from a motorist unless the police have probable cause to believe that the motorist has committed a crime. State v. Blank, 90 P.3d 156, 161-64 (Alaska 2004). As both my colleagues and the State concede, when the officers told Anderson that he was required to accompany them to the police station and submit to blood and urine testing, the officers did not have probable cause to believe that Anderson had committed any crime. Therefore, even though Anderson peaceably acquiesced in the officers' demand, Anderson's transportation to the police station constituted an unlawful arrest.
There may have been no formal announcement of arrest, but the police restrained Anderson's freedom of movement to a "degree which the law associates with formal arrest".1 As this Court noted in Haag v. *935State, 117 P.3d 775, 779 (Alaska App.2005), "[if a person] is involuntarily transported a lengthy distance, or if the [person] is detained at another location for a lengthy period of time, the detention will be deemed an arrest."
The fact that the police honestly believed that they were entitled to take Anderson into custody for this limited purpose, and the fact that the police treated Anderson politely when they ordered Anderson to accompany them to the police station, do not change the fact that the arrest was illegal.
Because Anderson was illegally arrested, any evidence stemming from that arrest must be suppressed unless the evidence was obtained in a way sufficiently independent of the illegal arrest that we can fairly say it was "purged of the primary taint" of that arrest. Wong Sun v. United States, 371 U.S. 471, 488, 88 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963).
My colleagues assert that, even though Anderson was illegally arrested, his post-arrest decision to surrender blood and urine samples to the police was nevertheless "voluntary" and untainted by the unlawful arrest. In support of their conclusion, my colleagues cite the facts that (1) the officers treated Anderson politely, (2) the officers were acting in good faith when they told Anderson that they had the authority to force him to give these samples, and (8) the officers gave Anderson an ample opportunity to speak with his attorney before Anderson acquiesced in the officers' demand. Here are the reasons why I conclude that these factors are insufficient to purge the taint of Anderson's illegal arrest:
In his treatise on the law of search and seizure, Professor LaFave discusses the question of whether an arrestee's consent to a search of their person is tainted by the preceding unlawful arrest. See Wayne R. LaFave, Search and Seigure: A Treatise on the Fourth Amendment (4th ed.2004), § 8.2(d), Vol. 4, pp. 79-84.
Professor LaFave notes that "an illegal arrest bears uniquely on the question of [the] voluntariness [of a person's ensuing decision to allow the police to conduct the search]"because an unlawful arrest "constitutes a false claim of authority over the person in much the same way that reliance upon an illegal search warrant constitutes a false claim of authority over the premises named in the warrant."2
Thus, just as a [person's] "consent" to search premises prompted by an illegal warrant is not voluntary, a "consent" to [a] search of the person following an illegal arrest is likewise not voluntary. The making of the arrest communicates an assertion of authority to maintain custody of the individual and, by common understanding, to also the search the person incident to that custody.
LaFave, § 8.2(d), Vol. 4, p. 80.
This reasoning applies even more forcefully to the facts of Anderson's case-because, here, the officers did not merely impliedly assert the right to search Anderson's person; rather, the officers explicitly asserted that they had the right to demand body samples from Anderson. This was the officers' stated justification for taking Anderson into custody in the first place. And when, at the police station, Anderson expressed uncertainty about whether to cooperate, the officers repeatedly told him that he was required by law to give them the blood and urine samples.
The fact that the officers made their demand politely does nothing to alter the involuntariness of Anderson's decision to acquiesce in the officers' demand. Likewise, the fact that the officers were operating under a good-faith mistake about their authority (or, rather, their lack of authority) to demand the body samples does nothing to alter the involuntariness of Anderson's deci-gion.
This brings me to the last factor that my colleagues rely on: the fact that Anderson had an opportunity to consult his attorney before he made his decision.
It is true, as Judge Bolger notes in his concurrence, that courts often treat a defendant's consultation with counsel as an intervening event that will dissipate the taint of an earlier unlawful arrest. But the cases *936that Judge Bolger relies on all involved situations where a defendant, after consultation with counsel, made a post-arrest decision to submit to a police interview, or to consent to a search, with full understanding that the defendant had no obligation to cooperate with the police investigation.
The courts in these cases naturally assumed that, during the defendant's consultation with counsel, the attorney advised the defendant that he or she could refuse to be questioned, or could refuse to consent to the search. But there can be no such assumption in Anderson's case. Both Anderson and his attorney were repeatedly told that Anderson had no right to refuse the police request for blood and urine samples.
There is, perhaps, some small possibility that Anderson's attorney might have fully and accurately informed Anderson that the police officers were wrong, and that Anderson did in fact have the right to refuse their demand for body samples. Under this scenario, Anderson (after receiving this legal advice, and acting with full knowledge of his Fourth Amendment rights) might have voluntarily decided to waive his rights and to cooperate with the police by giving them the body samples.
But although my colleagues apparently subscribe to this view of the matter, I find this scenario implausible. There is nothing in the record to show that Anderson received correct legal advice from his attorney. Indeed, the record strongly suggests the opposite.
After Anderson advised his attorney of the situation (i.e., that Anderson had been taken into custody, and that the police were demanding body samples from him), Anderson's attorney spoke to the officer who had taken Anderson into custody. This officer told the attorney that, under the law, Anderson was obliged to furnish the body samples. Anderson's attorney then asked to speak to the officer's supervisor, a police lieutenant. The lieutenant told the attorney the same thing: Anderson was required to surrender the body samples.
There is no indication, from the police testimony, that Anderson's attorney ever contradicted the officers' assertions of authority. Indeed, the testimony of Thomas Gaulke (the officer who took Anderson into custody) indicates that Anderson's attorney acquiesced in the officers' assertions of authority and directed his client to provide the body samples:
Officer Gaumlke: [Anderson's attorney] talked to Lieutenant Reeder. Based upon [the] conversation that he had with Lieutenant Reeder-as far as the [im]plied consent law goes, [and] whatever questions he and Lieutenant Reeder had amongst one another-[the attorney] then informed Mr. Anderson to provide [the] blood sample and [the] urine sample....
The record also demonstrates that Anderson's attorney had little or no chance to independently research the law on this issue. These conversations occurred on the afternoon of Saturday, December 28, 2006-that is, on the Saturday afternoon of a three-day Christmas weekend-and the attorney was not in his office.
It is true that neither Anderson nor his attorney presented testimony to the district court concerning the content of their conversation, so we do not know exactly what was said during that conversation. However, onee it was established that Anderson was subjected to an unlawful arrest, it was not Anderson's burden to affirmatively prove that his decision to give the body samples was tainted by the preceding illegal arrest. Rather, it was the State's burden to affirmatively show that Anderson's decision was not tainted by the preceding illegal arrest.
Because the State bore the burden of proof, we are not allowed to assume the facts most favorable to the State from a silent record. It was improper for the district court-and it is improper for this Court-to assume that the content of the conversation between Anderson and his attorney somehow dissipated the taint of the illegal arrest, or somehow made Anderson's decision to surrender the body samples voluntary.
For these reasons, I dissent from my colleagues' decision to affirm Anderson's conviction. The test results from Anderson's body *937samples should be suppressed, and Anderson's conviction should be reversed.
. Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment (4th ed.2004), § 5.1(a), Vol. 3, p. 12.
. Id. at 79-80.