(dissenting).
So far as the Miranda part of this case is concerned, the only question before us is whether the Miranda rule applies to a first prosecution under Sec. 564.440, R.S.Mo. 1969, V.A.M.S. which prohibits driving a motor vehicle while intoxicated, but the court goes much further and lays down the broad dictum that Miranda does not apply to investigation of most motor vehicle offenses. In so doing the court accepts the speculative postulate that otherwise “it would be utterly impossible to provide sufficient lawyers to consult with the number of motor vehicle operators who would be likely to request legal advice.”
What evidence there is on the subject is to the contrary. A study was made by a group from Yale Law School as to the workings of the Miranda rule at the New Haven, Connecticut police station for an eleven weeks period during the summer of 1966. New Haven has a population of 152,000 inhabitants. The results are reported in 76 Yale L.J. 1519-1648. One of the findings was that in only a few instances did the warnings as given cause suspects to ask for counsel, even though felonies and serious misdemeanors were involved. “In a primarily statistical analysis, we conclude that there is no evidence indicating that the warnings given this summer caused many suspects to refuse to talk or to ask for counsel”, 1. c. 1523. “Our findings suggest Miranda will rarely bring lawyers to the station house. Defendants, told of their right to counsel, usually neglect the offer and let interrogation proceed”, 1. c. 1600.
In the District of Columbia, the Institute of Criminal Law and Procedure of Georgetown University Law Center undertook an empirical study of the attempt to implement Miranda in the District. This is reported in 66 Michigan L.R. 1347-1422. The Junior Bar Association of the District Bar and the Neighborhood Legal Services Project set up a program to provide around-the-clock availability of counsel for defendants, seven days a week, for a period of a year. In this year, “an astonishingly small number of defendants”, only 7% of all those arrested for felonies and serious misdemeanors, requested counsel from the Project, 1. c. 1352. In “The Self-Inflicted Wound”, by Fred P. Graham, a member of the bar and the Supreme Court correspondent for The New York Times, the author sums up the research which has been done on the effect of the Miranda rule in police work and says at p. 280: “The verdict of the academic researchers has been virtually unanimous — that the impact of Miranda has not been great . . . and that in any event most suspects go ahead and talk.”
It is a mistake, in my opinion, to decide the question of whether the Miranda rule applies to a drunken driving charge on the erroneous assumption the police would be swamped with requests for counsel if the rule is held to apply to motor vehicle offenses in general, a question which is not before us, anyway.
In addition, the broad denial laid down by the decision will be read by the police as our approval to relax their vigilance in warning suspects of their constitutional rights whenever the police investigate what *555at first appears to be only a minor motor vehicle offense. As the investigation proceeds, the police may find a major felony has been committed, whereupon their work may be spoiled for want of a Miranda warning at the outset. This risk is inevitable where the criterion for determining the applicability of Miranda warnings is not, has the person been taken into custody as set forth in Miranda, but whether the police can divine at the time the person is first taken into custody if he is to be prosecuted for only a motor vehicle misdemeanor or something more serious.
I believe we should confine ourselves to the issue before us. On that issue I believe Judge Hogan, in his opinion in the Court of Appeals, convincingly sets forth the reasons why the Miranda rule should apply to a prosecution for drunken driving.
I, therefore, dissent and adopt as my dissent the following from his opinion, where, immediately after what is quoted in the majority opinion, Judge Hogan goes on to say:
“The substance and force of the defendant’s point is immediately apparent. To make out a case under Sec. 564.440, R.S. Mo. (1969) V.A.M.S., the State must prove 1) that the defendant operated a motor vehicle, and 2) that he was in an intoxicated condition while doing so . [Fjrom the outset, the State here undertook to establish the first element of the offense, operation, by admission of the defendant.
The Miranda and Orozco cases require the four point warning at the time the individual is taken in custody or otherwise deprived of his freedom of action in any significant way. Miranda v. Arizona, supra, 384 U.S. 436 at 477, 87 S.Ct. 1602 at 1629, 16 L.Ed.2d 694 at 706; Orozco v. Texas, 394 U.S. 324, 327, 89 S.Ct. 1095, 1097, 22 L.Ed.2d 311, 315. The use of admissions obtained from the defendant after arrest and without the Miranda warning having been given is, in the language of the Orozco case, ‘ . . .a flat violation of the Self-Incrimination Clause of the Fifth Amendment as construed in Miranda.’ Orozco v. Texas, supra, 394 U.S. at 326, 89 S.Ct. at 1097, 22 L.Ed.2d at 314. Moreover, it is clear from the Federal authorities that although the words of Miranda do not constitute a ritualistic formula which must be repeated verbatim, United States v. Vanterpool, 2 Cir., 394 F.2d 697, 698-699, the whole substance of the warning, and not merely part of it, must be given, in the absence of a waiver, which is not even suggested here. Green v. United States, 10 Cir., 411 F.2d 588, 589(2, 3); United States v. Fox, 2 Cir., 403 F.2d 97, 100 (204); Lathers v. United States, 5 Cir., 396 F.2d 524, 533-534(10); see also Anno., 31 A.L.R.3d 565, 574, Sec. 2(a) (1970).
“ . . . [T]he unmistakable import of Trooper Aytes’ testimony is that the defendant was placed ‘under arrest’ and significantly deprived of his freedom of action at the time Aytes walked up to the defendant’s vehicle and observed the defendant, his intoxicated condition and the condition of the front end of his vehicle. Trooper Aytes advised defendant that anything he might say could be used against him, but his warning went no further. Trooper Herndon arrived after defendant was under arrest, and he was permitted to testify that ‘if I recall, Trooper Aytes asked Mr. Neal if he had been driving and he said he had.’ The State therefore made its case, or a substantial part of it, in our opinion, on custodial admissions obtained without a Miranda warning, or at least without a proper warning . . . Our conclusion ... is, that the defendant was prejudiced by permitting Trooper Herndon to testify to his admission that he had been driving because that admission was made during custodial interrogation without a proper Miranda warning
“ . . . It may be true that the Miranda rule cannot be practicably applied to every petty offense, and it may be that Miranda was not meant to apply to misdemeanors, though we certainly find no such *556limitation in the language of the case. We are not called upon to decide such broad questions here, but only to decide whether or not Miranda is applicable to prosecutions under Sec. 564.441. .-
“The difficulty we have here is that the distinctions drawn in other states are, in our view, inadequate as criteria by which to determine this appeal . . . Perhaps those courts had in mind those offenses commonly regarded as mere infractions of the ‘rules of the road’, but to exempt litererally all offenses involving the operation of a motor vehicle from the application of Miranda would equate a speeding ticket with a prosecution for manslaughter by culpable negligence in the operation of a motor vehicle under Sec. 599.070, an equation we regard as untenable . . . Assuming that the privilege against self-incrimination and the right to counsel are divisible so as to apply in some cases and not in others, the consequences of conviction may in sum total be as serious for the mis-demeanant as for the felon.
“Our difficulty is compounded by the fact that our Sec. 564.440 is a hybrid statute. It prohibits ‘operating’ a motor vehicle ‘while in an intoxicated condition.’ It provides that the first two violations are to be considered misdemeanors, and that the third and subsequent convictions are felonies. For the first offense, as here, the penalty is a fine of not less than $100, or imprisonment in the county jail for not more than six months, or both; for the second offense, the penalty is confinement in the county jail for a term not less than 15 days and not more than one year; for the third and subsequent offenses the penalty upon conviction is either confinement in the county jail for not less than ninety days nor more than one year, or by imprisonment by the department of corrections (that is, in the penitentiary) for a term of not less than two nor more than five years. In addition, under our ‘point system’, a conviction under Sec. 564.440 results in loss of the misdemeanant’s driving privileges pursuant to Secs. 302.302, Subd. (7) and 302.304, Subd. (3). If the conviction under Sec. 564.440 is a second conviction, the misdemeanant may not be granted even limited driving privileges. Sec. 302.309, Subd. (5). Other disabilities in the nature of disfranchisement are attendant upon third and subsequent convictions. See Sec. 564.710. Moreover, the offense of driving while intoxicated is relatively easy to prove; the individual suspected of the offense is practically obliged by the provisions of Sec. 564.444 to submit to a chemical test to determine whether or not he is intoxicated, and the element of ‘operation’ may be proved by inference from almost any circumstance indicating that the defendant had been driving or attempting to drive the automobile .
“ . . . [W]e conclude that the Miranda rule should be and is applicable to violations of Sec. 564.440. The charge is relatively simple to prove; ordinarily, no extensively custodial interrogation is necessary. The consequence of conviction may be extremely serious, and we do not believe that law enforcement officers would be heavily overburdened by the application of the Miranda procedures to violations of Sec. 564.440.”