dissenting. I respectfully dissent from the holding in Part III of the majority’s opinion. Under the facts of this case, defendant was denied meaningful communication with his attorney, and therefore was denied his statutory right to counsel.
The majority’s adoption of an objective test in determining whether a defendant being processed for DUI was able to communicate privately with counsel serves merely to obscure what has been up until now a clear rule: did the arresting officers make reasonable efforts to afford defendant an opportunity to communicate privately with counsel. See Pfeil v. Rutland District Court, 147 Vt. 305, 309, 515 A.2d 1052, 1055 (1986). I believe the facts indicate that in this case the police did not make this effort.
There are three cubicles in a back room used for processing arrestees at the Barre police station. These cubicles consist of three metal partitions that are about five feet high and a half inch thick. Both of the officers who processed defendant for DUI testified that defendant was allowed to talk to an attorney on a phone located in one of the cubicles. While waiting for defendant to finish his conversation with his attorney, one officer sat in a cubicle adjacent to defendant and the other paced back and forth in front of the cubicles to keep an eye on defendant, occasionally sticking his head in to see if he had finished his conversation. Both officers said they could hear his conversation.
The officer who paced in front of the cubicles testified on cross-examination that he could have observed defendant from down the hall without having to be within earshot of his conversation. He also testified that defendant at no time presented a security risk. There appeared to be no purpose served by the other of*147fleer’s presence in the cubicle adjacent to defendant. Defendant testified that he felt that because of the officer’s presence he could not speak candidly with his attorney. When speaking with his attorney he declined to give a full account of what happened prior to the car accident and how much he had to drink. He said he did not want the officers to overhear these details for fear that they would assume that he was guilty of driving while intoxicated. He said he did not ask for more privacy because he did not want to appear uncooperative.
As the majority points out, this case is distinguishable from State v. Lombard, 146 Vt. 411, 415, 505 A.2d 1182, 1185 (1985). The defendant in Lombard had been apprehended after leaving the scene of an accident and made his phone call to his attorney from a public phone booth. In that case defendant posed a security risk for the arresting officer, who stood nearby and overheard defendant’s conversation with his attorney. Here, as the majority acknowledges, defendant posed no such risk. Unlike the setting in Lombard, police stations can be arranged so as to provide a place where defendants can talk privately and not pose a security risk. Furthermore, again unlike this case, there was no evidence presented in Lombard that defendant felt inhibited by the officer’s presence. Despite our holding in Lombard that there had not been a violation of defendant’s right to consult an attorney, we warned that:
Although we do not find a violation here, we feel constrained to add that we in no way sanction or approve of police conduct which effectively prevents defendants from freely communicating with their attorneys in private. Defendants must be afforded a meaningful opportunity to consult with counsel before submitting to a breath test. Police practices which unjustifiably interfere with this right cannot be tolerated.
Id. at 415, 505 A.2d at 1185. Lombard thus suggests a result opposite from that reached by the majority.
Until today, and for good reason, the test had not been “how a reasonable person in the defendant’s position would have understood his situation.” State v. West, 151 Vt. 140, 145, 557 A.2d 873, 877 (1988). This newly-announced test runs contrary to our holding in State v. Carmody, 140 Vt. 631, 442 A.2d 1292 (1982). In that case, we wrote:
*148To allow unauthorized police action to cloud the otherwise voluntary nature of the decision to refuse testing would be inconsistent with [the legislature’s] concern. Since the impact of actions seen as coercive or restrictive is almost impossible to measure after the fact, ... we are compelled to the position that a mere demonstration that such actions occurred creates a flaw in the procedure.
Id. at 636, 442 A.2d at 1295; see also Pfeil, 147 Vt. at 309-10, 515 A.2d at 1056. The invasion of defendant’s privacy demonstrated by the evidence in this case “creates a flaw in the procedure” of sufficient dimension to warrant reversal.
The Carmody rule, like other rules directed at police conduct, see, e.g., Miranda v. Arizona, 384 U.S. 436, 465 (1966), is intended as a “protective device” aimed at guiding police action. See also Fare v. Michael C., 442 U.S. 707, 718 (1979) (“Miranda’s holding has the virtue of informing police and prosecutors with specificity as to what they may do in conducting custodial interrogation . . . .”). The majority’s test, in contrast, has the unfortunate effect of making clearly impermissible police practices permissible, depending on how they might have been perceived by the defendant. The decision today weakens significantly the underlying function of the rule, and, I fear, opens the door for its evasion.
In support of its decision to apply an objective test, the majority cites Berkemer v. McCarty, 468 U.S. 420 (1984), and State v. Willis, 145 Vt. 459, 494 A.2d 108 (1985). Those cases employ an objective test to determine whether a defendant is in custody for Miranda purposes. The test concerns a threshold issue: a suspect’s Miranda rights will be triggered if he or she is determined to be in custody. As this Court stated in Willis, “courts should make an objective inquiry into the totality of the circumstances to determine if a reasonable person would believe he or she were free to leave or to refuse to answer police questioning.” 145 Vt. at 475, 494 A.2d at 117.
The matter at issue here is entirely different. Defendant’s rights under the statute had already been triggered, and the police knew this. Their duty was to honor that right. A court reviewing their conduct should ask whether the police did or did not honor the defendant’s right to consult in private with his attorney. See Pfeil, 147 Vt. at 309, 515 A.2d at 1055 (“The statutory *149right to counsel that attaches prior to testing includes the right to communicate freely with an attorney in private.”). There is no need to resort to an objective test to make this determination. The focus should be on what the police did, and whether any infringement of defendant’s right was justified by the exigencies of the moment. '
I also fail to see why the majority insists on adopting a balancing approach: “[T]he degree of privacy an arrestee should be afforded to communicate with counsel must be determined by balancing the individual’s right to consult privately with counsel against society’s interest in obtaining or preserving important evidence.” West, 151 Vt. at 144, 557 A.2d at 876. The Legislature, however, has already made the balance, and concluded that the right to counsel in these circumstances tips the scales. See Carmody, 140 Vt. at 636, 442 A.2d at 1295 (“The legislature specifically demonstrated its concern that any refusal to be tested not be lightly decided, by providing for counsel and for time for reflection.”). The statutory language is unequivocal:
A person who is requested by a law enforcement officer to submit to a test which is intended to be introduced into evidence, under this section shall have the right to consult an attorney prior to deciding whether or not to submit to such a test.
23 V.S.A. § 1202(c). When the Legislature wished to weigh in “society’s interest,” it did so expressly. Thus the statute requires that the person “decide within a reasonable time, but no later than thirty minutes from the time of the initial attempt to contact the attorney, whether or not to submit to the evidentiary test.” Id. No other constraints on the right to counsel are contained in the statute, and I do not see why we should read them in.
I would not be misunderstood to suggest that the right is absolute. Overriding circumstances may require some intrusion on a suspect’s private consultation with counsel,* such as occurred in Lombard. Such overriding circumstances, however, simply do not obtain in this case.
*150Finally, “[a] meaningful exercise of the defendant’s right to counsel should not depend upon whether a defendant requests permission to consult privately with his lawyer.” State v. Beaupre, 123 N.H. 155, 159, 459 A.2d 233, 236 (1983). It should not be defendant’s burden to assert his right to private consultation with his attorney. Cf. Miranda, 384 U.S. at 468 (Court “will not pause to inquire in individual cases whether the defendant was aware of his rights . . . .”); State v. Normandy, 143 Vt. 383, 387, 465 A.2d 1358, 1360 (1983) (officers required to make defendant aware of his right to an independent blood test). Defendant’s awareness that he could have asked for more privacy may go to his credibility as to his feeling inhibited by the officers’ presence, but it should be irrelevant as to whether the officers in question responded appropriately or not.
I conclude that because defendant was denied meaningful communication with his attorney, he should not be bound by his decision to take the breath test. I would reverse and remand the case with a mandate that the result of the breath test be suppressed. See State v. Duff, 136 Vt. 537, 540, 394 A.2d 1145, 1146 (1978).
To allow for overriding circumstances is not to invoke, through a side door, the majority’s balancing test. The former recognizes that there is a presumption that must be overcome if the police wish to intrude on a defendant’s communications with counsel. The balance test recognizes no presumption.