dissenting.
The majority’s conclusion that defendant’s consent to the blood draw was invalid, as involuntary, is ultimately, erroneously premised on a single sentence in the plurality opinion in State v. Newton, 291 Or 788, 801, 636 P2d 393 (1981), overruled in part on other grounds by State v. Spencer, 305 Or 59, 750 P2d 147 (1988). That aspect of the Newton plurality is not binding, has never been cited, much less ratified, in the intervening 28 years, and is patently wrong. Accordingly, I respectfully dissent.
In holding that defendant’s consent to the blood draw was not voluntary, the majority opinion concludes that the “determinative” consideration was that “the consent was procured through a threat of economic harm and loss of privileges. It was obtained only after defendant was given the warnings required by ORS 813.130(2) about the consequences of a refusal to allow a blood test.” 231 Or App at 240.1 *248That conclusion is, in turn, ultimately predicated on a single sentence in the Newton plurality opinion:
“ ‘Where a person’s consent to a seizure is solicited, and the person consents only after being warned that he will suffer a substantial penalty if he refuses, the resulting consent cannot be regarded as a free exercise of will.’ ”
231 Or App at 240-41 (quoting Newton, 291 Or at 801).
The majority’s treatment of that statement as immutably binding is erroneous. That is so, jurisprudentially and practically, for any of several reasons.
First, that statement was made in a plurality opinion, not a majority opinion, of the Supreme Court. Three justices, including the author, Justice Tanzer, joined in the Newton plurality. Justice Tongue, “specially concurring,” “concurred] in the result reached by the opinion by Tanzer, J.,” 291 Or at 813 (emphasis added), without any reference to the plurality opinion’s treatment of “consent.”
Further, in concurring in the plurality’s “result,” Justice Tongue did not, by necessary implication, join in the plurality’s “holding” with respect to consent. That is so because, even within the context of the Newton plurality, that opinion’s treatment of consent was not essential to its result — viz., that the trial court had erred in suppressing the results of the defendant’s breath test. The plurality, after concluding that the defendant’s consent was not voluntary— a determination that militated in favor of suppression— proceeded, in the next paragraph, to conclude that the warrantless seizure of the defendant’s breath sample was, nevertheless, constitutionally valid under the probable cause/ exigent circumstances exception to the warrant requirement. Id. at 801-02. Given that conclusion, the Newton plurality’s treatment of consent was gratuitous.
In the 28 years since Newton, neither the Supreme Court nor this court has ever ratified the plurality’s gratuitous and conclusory treatment of consent. It is a barren *249branch. Indeed, until today, no published opinion in the past 28 years has favorably cited that aspect of the Newton plurality.
That is unsurprising, because the Newton plurality’s treatment of consent was, and is, wrong. According to the Newton plurality, merely informing a suspect of the statutorily prescribed consequences of refusal is impermissibly “coercive.” The upshot is that there can never be an enforceable consent for constitutional purposes when the police have complied with ORS 813.100(1) and ORS 813.130(2).2 Even if the defendant expressly consents, it is worthless as a constitutional matter.3 Indeed, if the Newton plurality’s proposition were taken literally, it would preclude constitutionally effective consent even after a DUII suspect consults with counsel, because the “coercive” effect of the statutorily prescribed warnings would impermissibly skew the suspect’s calculus in determining whether to consent.
That is not the law. Informing a citizen of statutorily prescribed consequences that will as a matter of law flow from a refusal is not, and cannot be deemed, impermissibly coercive for constitutional purposes. Contrary to the Newton plurality’s unamplified dictum, we and the Supreme Court have repeatedly reiterated the principle that an accurate statement of lawful consequences is not coercive with respect *250to a defendant’s consent to search. See, e.g., State v. Hirsch, 267 Or 613, 622, 518 P2d 649 (1974) (quoting with approval Chief Justice O’Connell’s observation in dissent in State v. Douglas, 260 Or 60, 81, 488 P2d 1366 (1971): “But not all coercion inducing consent to a search is constitutionally impermissible. If the officers threaten only to do what the law permits them to do, the coercion that the threat may produce is not constitutionally objectionable.”); State v. Bowen, 137 Or App 327, 331, 904 P2d 1076 (1995), rev den, 323 Or 74 (1996) (“Under state law, consent is not involuntary simply because police threaten ‘to do what the law permits them to do.’ ” (quoting State v. Williamson, 307 Or 621, 627, 772 P2d 404 (1989) (Carson, J., concurring) (some internal quotation marks omitted))).
Smith v. Washington County, 180 Or App 505, 43 P3d 1171, rev den, 334 Or 491 (2002), exemplifies that principle. There, we rejected a contention that submission to courthouse security screening procedures was coerced, not consensual, because citizens “are forced to submit as a condition of entering the courthouse.” Id. at 511. In so holding, we emphasized that “valid ‘consent’ occurs when a citizen submits to a search rather than face a disagreeable alternative if the choice to which the government puts the citizen is itself lawful.” Id. at 512 (emphasis in original). See also State ex rel Juv. Dept. v. Stephens, 175 Or App 220, 227, 27 P3d 170 (2001) (noting that, when “a defendant is confronted with the reality of what the law permits government officials to do if consent is refused,” “[tjhe decision whether to consent, when made in the face of such a legal reality, is not enough, in and of itself, to render the consent involuntary for constitutional purposes”).
The irony, of course, is that, under the majority’s analysis, the state is “damned if it does, and damned if it doesn’t”: If officers convey the statutorily prescribed information, as mandated under ORS 813.100(1), it is impermissibly “coercive” — and, if they do not, they have violated their statutory duties. The latter would, in turn, beget yet another irony: Because the failure to convey the statutorily prescribed consequences to a suspect who consents to a breath test or blood draw does not give rise to suppression, see State v. Bloom, 216 Or App 245, 251-52, 172 P3d 663 (2007), rev *251den, 344 Or 280 (2008), under the majority’s analysis, the state is actually better off if police officers violate their statutory duties rather than comply with them. The Newton plurality did not, of course, acknowledge, much less grapple with, those fundamental incongruities.
, In sum, the Newton plurality is neither binding nor correct with respect to the voluntariness of defendant’s consent to the blood draw in this case. Rather, in the totality of the circumstances, defendant’s consent was voluntary; accordingly, the warrantless seizure of defendant’s blood was lawful. The trial court’s denial of suppression must be affirmed.4
Landau, Armstrong, and Schuman, JJ., join in this dissent.The majority opinion also referred to other circumstances, including that, at the time defendant consented to the blood draw, he was under arrest and under the influence of alcohol, and had been injured in the automobile accident shortly *248before. 231 Or App at 239-40. Not surprisingly, given that the first two of those circumstances are almost invariably present when a suspect consents to a blood draw or breath test — and the third is hardly unusual — the majority does not treat those circumstances individually, or collectively, as decisive.
ORS 813.100(1) provides, as pertinent, that, before “a chemical test of the person’s breath, or of the person’s blood if the person is receiving medical care in a health care facility immediately after a motor vehicle accident” is administered, “the person requested to take the test shall be informed of consequences and rights as described under ORS 813.130.”
ORS 813.130(2), in turn, prescribes the content of the “information about rights and consequences,” including the consequences of refusing or failing a test under ORS 813.100, e.g., inculpatory use of the refusal or failure, automatic suspension of driving privileges, and, in the case of refusal, impaired eligibility for a hardship permit and exposure to a fine of not less than $500 and not more than $1,000.
Nevertheless — and somewhat incongruously — the administering officer would still be obligated, as a statutory matter, to confirm the suspect’s willingness to submit to the breath test or blood draw. See ORS 813.100(2) (precluding administration of a “chemical test of the person’s breath or blood” if the person refuses the request to submit after being “informed of consequences and rights as described under ORS 813.130”); see generally State v. Kirsch, 215 Or App 67, 168 P3d 318 (2007) (addressing application of ORS 813.100(2) where the defendant driver, after initial refusal, was invited by administering officer to reconsider and ultimately agreed to submit to breath test).
Given that conclusion, I need not, and do not, address whether the warrant-less seizure of defendant’s blood was independently lawful under the probable cause/exigent circumstances exception. I would note, however, that the practical consequence of the majority’s reasoning in that regard, see 231 Or App at 245-47, is that — because it is impossible to know at the outset how long it will take to actually obtain a blood sample or breath test — the state, as a prophylactic matter, would be obligated in virtually every case to obtain a warrant before administering a breath test or drawing blood.