specially concurring.
I concur in the lead opinion ordering a new trial due to the violation of defendant’s right to counsel in connection with the breath test. However, I disagree with the its analysis of the field sobriety test issue.
ORS 813.135 provides:
“Any person who operates a vehicle upon premises open to the public or the highways of the state shall be deemed to have given consent to submit to field sobriety tests upon the *615request of a police officer for the purpose of determining if the person is under the influence of intoxicants if the police officer reasonably suspects that the person has committed the offense of driving while under the influence of intoxicants in violation of ORS 813.010 or a municipal ordinance. Before the tests are administered, the person requested to take the tests shall be informed of the consequences of refusing to take or failing to submit to the tests under ORS 813.136.”
When ORS 813.135 was added to the Implied Consent Law, ORS 813.100 et seq, in 1989, DUII prosecutions had been subject to this rule for more than a decade:
“The negative cast of [the predecessor of ORS 813.320]1 which does not bar violative evidence in cases other than [DUII prosecutions], implies its converse: Evidence obtained in violation of its implied consent procedures is not admissible in the trial of a charge of driving under the influence of intoxicants.” State v. Creson, 33 Or App 369, 372, 576 P2d 814 (1978) (Emphasis supplied.)
Creson held that a police officer’s failure to give complete advice to a driver of rights in connection with a breath test rendered the test results inadmissible in a DUII prosecution. That construction of the predecessor of ORS 813.320 became “a part of the statute as if written into it at the time of its enactment.” Walther v. SAIF, 312 Or 147, 149, 817 P2d 292 (1991). The legislature has modified other aspects of the Implied Consent Law in response to judicial constructions. We assume that, when the legislature enacts modifications of a statute, it is aware of judicial decisions, like Creson, that have interpreted the statutes. See State v. Clevenger, 297 Or 234, 244, 683 P2d 1360 (1984). Although Creson has been the law since 1978, and the legislature has repeatedly modified other elements of the Implied Consent Law since then, it has newer modified Creson. Nothing in ORS 813.135 suggests that it was meant to be exempt from Creson. With that background, the majority opinion is properly read *616as an exercise in avoiding the obvious conclusion that the legislature intended the Creson rule to govern the admissibility of evidence obtained in violation of field sobriety test procedures.
The lead opinion notes a distinction in the statutory description of the information that the officer must convey to the driver:
“ORS 813.100(1) requires an officer to inform a driver who has been arrested for DUII of the ‘consequences and rights as described in ORS 813.130’ before administering a breath test. (Emphasis supplied.) In contrast, ORS 813.135 only requires that the officer inform the driver ‘of the consequences of refusing to take or failing to submit [to] the [field sobriety] tests.’ (Emphasis supplied.)” 114 Or App at 612.
Because of that distinction, the majority declares breath test cases, like Creson, to be “instructive” but not controlling.
The lead opinion’s distinction is unconvincing. Nothing in Creson suggests that its rule was founded on the fact that ORS 813.100(1) then obligated an officer to inform a driver of rights concerning a breath test, as distinguished from the consequences of refusing to take it. Creson was based on the legislature’s policy that “ ‘potential defendants are not to be tricked or misled.’ ” State v. Creson, 33 Or App at 373, quoting State v. Freymuller, 26 Or App 411, 413, 552 P2d 867 (1976). The same policy underlies the notice of consequences requirement in ORS 813.135. A driver who is informed of the consequences of refusing a field sobriety test is less likely to be victimized by trickery, misunderstanding and deception about the consequences of refusing the test than is a driver who is uninformed. The lead opinion simply refuses to acknowledge that the same policy motivated the notice requirement in both the breath test and field sobriety test statutes.
Moreover, even granting that there is a distinction in the terms used to describe the required notice in the two statutes, it is easily explained. The breath test statute creates specific rights in the driver, such as the right to request an additional chemical test for blood alcohol content, to ensure a fair opportunity to show that a positive test is inaccurate. See ORS 813.130(2), (3). The field sobriety test statute creates no *617equivalent rights. No policy protecting drivers against deception and trickery would be served by requiring a notice of nonexistent “rights” in a field sobriety test. Searching for a way to distinguish Creson, the lead opinion has seized on the presence of a single word — “rights” — in the breath test statute that has no relevance in the field sobriety test context. More importantly, the majority refuses to acknowledge that both statutes identically require a notice of consequences of a refusal to take the test and are based on the identical policy, i.e., protecting drivers from deception.
Neither can the lead opinion meaningfully distinguish Creson on its facts. The defendant in Creson initially resisted a breath test, while the defendant here did not resist a field sobriety test. However, as the majority notes, 114 Or App at 612, the former breath statute obligated an officer to inform the driver of “consequences and rights” only if the driver initially refused the test. The requirement of an initial refusal has been stricken from the breath test statute and was not added to the field sobriety test statute. Logically, those facts suggest that the legislature now requires the police to inform every driver of the consequences of refusing each type of test, regardless of any initial refusal or agreement by the driver, and knows that the Creson rule applies if the officer administers either test without first giving the required notice. The lead opinion finds support for its result in dicta in State v. Spencer, 305 Or 59, 750 P2d 147 (1988), which held that the implied consent law did not require police to afford a driver access to counsel before submitting to a breathalyzer test. In reaching that conclusion, the court agreed with the plurality opinion in State v. Newton, 291 Or 788, 636 P2d 393 (1981), that the
“references [in ORS 813.100(1)] to a driver’s ‘refusal’ do not evince a legislative concern that the driver make a voluntary and fully informed decision whether to submit to the test. Consent being implied by law, a driver may not legally refuse. A driver, however, can physically refuse to submit, and the implied consent law, recognizing that practical reality, forbids the use of physical force to compel submission. The history and development of the implied consent law, as outlined by the dissent in [State c.] Scharf[, 288 Or 451, 605 P2d 690 (1980),] and by the plurality in Newton, suggest that the advice to be given an arrestee was intended to provide an *618additional incentive, short of physical compulsion, to induce submission. Moreover, while the implied consent law sets out in detail the advice to be given a driver before the breath test may be administered, ORS 813.130, there is no express provision for advising the driver that he or she may contact an attorney. In view of the background and purpose of the statutes at issue here, we cannot infer any legislative intent that a driver’s decision physically to refuse the test be made with the advice of a lawyer.
“As the dissent in Scharf also pointed out, the legislature provides that, if an arrested driver is not adequately advised, a refusal to submit to a breath test cannot serve as a basis for license suspension. ORS 813.410. The legislature has provided in detail the advice to be given and the consequences of failure to advise. We decline to find, as the Scharf court appeared to suggest, that the legislature intended to afford an arrested driver an additional, though unexpressed, right with an additional, also unexpressed, penalty for violation of that right.” State v. Spencer, supra, 305 Or at 71. (Emphasis in original; footnotes omitted.)
In reaching its conclusion, the Spencer court quoted a passage from Newton that is relevant to this case:
“The statute’s reference to a ‘refusal’ does not reinstate a driver’s right to choose whether to submit to the test; rather it recognizes the ‘physical reality’ of a driver’s ability physically to resist the tests. State v. Newton, supra, 291 Or at 792-93. Thus, the implied consent law ‘is designed to overcome the possibility of physical resistance, despite legal consent, without resort to physical compulsion’ by imposing adverse legal consequences on a refusal to submit to the test. Id. at 793, 636 P2d 393. The plurality also noted that, under former ORS 487.805(2), an officer was required to inform the accused of the consequences of refusal only after an initial refusal to take the test stating:
“ ‘Had the legislature been concerned “with assuring the arrested driver a voluntary and informed choice” as we stated in Scharf, 288 Or at 459 [, 605 P2d 690 (1980)] it surely would have required the police to advise the driver before, not after, the driver first chooses to submit or refuse.’ Id. at 799 (emphasis in original).
“The plurality concluded that the legislature did not intend an arrested driver to have any choice whether to submit to the breath test, and that access to counsel before taking the *619test was not required by former ORS 487.805.” State v. Spencer, supra, 305 Or at 67.
Spencer and Newton do not decide the issue posed in this case. The stumbling block for the defendant in Spencer was that he asked the court to imply a right to counsel from the reference in ORS 813.100(1) to consequences of a driver’s physical “refusal” to take a breath test. While repeatedly conceding that a driver could physically refuse to submit, the court declined to judicially create a right to obtain the advice of a lawyer to achieve that undesired result.
The passage from Newton quoted in Spencer has obvious implications for this case. To paraphrase it, the requirement in ORS 813.135 that the police advise the driver before, not after, the driver chooses to submit to or refuse a field sobriety test demonstrates a concern that the arrested driver be accurately informed of the consequences of refusing the test before any test is administered.
The limited statutory right to a notice of consequences will almost never convey enough information to permit a driver to be “fully informed.” However, it will have predictable effects that, I assume, the legislature fully realized and intended. The notice will probably serve as an additional incentive to comply with the officer’s request in most cases. In a few cases, the notice may induce a driver to refuse the test physically. That consequence is undesirable in view of the consent law’s policy to obtain compliance with requests for tests in all cases. However, it is an inevitable effect of a law that implies a driver’s consent to a test from the act of driving and denies him a “legal” right to refuse but acknowledges his ability to physically resist the test and forbids the use of physical force to compel submission.
The majority holds that requiring warnings would serve no purpose when the driver consents to the tests, because the “coercive pall of the warnings” is not needed. 114 Or App at 613.1 disagree. Unlike in Spencer, we are not asked to imply a right to information from ambiguous statutory terms. ORS 813.135 expressly requires a notice of consequences in all cases, despite any initial reaction of resistance or compliance by the driver, and specifies that the notice shall be conveyed before the test is administered. The statute’s *620terms and its predictable effects suggest that a paramount objective of the notice requirement is the avoidance of misunderstanding and possible deception of the driver, not only the coercion of submission to the test. If coercion were the sole objective, the legislature would have maintained the now discarded requirement that the warning of consequences be given only after the driver initially refuses to submit. If the notice occasionally induces a driver to decline the test, we can only assume that the legislature was aware of the inevitable risk, but nevertheless opted for a policy that minimally assures that drivers will not be tricked or misled about the consequences of a refusal.
I am concerned about the practical effect of the lead opinion’s result. Although the statute entitles every driver to a notice of consequences, as a practical matter only those drivers who resist the test are likely to receive a notice. I cannot join in enforcing the statutory right to notice for those drivers who resist law enforcement officers’ requests, while denying that right to those drivers who cooperate. The lead opinion’s rule would necessarily encourage officers to cajole or pressure drivers into compliance without giving the required notice, and will spawn unnecessary factual disputes about whether a driver consented to a test without the required warning.
I cannot join in the separate opinion of Edmonds, J., because he concludes that a driver must first refuse the test before ORS 813.135 applies. Although ORS 813.136 states the consequences of a driver’s refusal to take a field sobriety test, it says nothing about the effect of the officer’s failure to inform the driver of consequences, as required by ORS 813.135. Nothing in the terms of the notice requirement suggest that it is applicable only in the event of a driver’s refusal. In fact, its legislative history refutes that interpretation.
The officer violated ORS 813.135 by failing to give the required notice of consequences of a refusal before administering the field sobriety test. Under the rule in State v. Creson, supra, the evidence obtained through the unlawful test procedure is not admissible in this DUII trial. I join the portion of Judge Riggs’ dissenting opinion that criticizes the lead opinion for disregarding Creson.
*621For the reasons stated above, I concur in the lead opinion’s result, but disagree with its analysis of the field sobriety test issue.
Buttler, J., joins in this special concurrence.
ORS 813.320 provides:
“The provisions of the implied consent law, except ORS 813.300, shall not be construed by any court to limit the introduction of otherwise competent, relevant evidence in any civil action, suit or other proceedings or in any criminal action other than a violation of ORS 813.010 or a similar municipal ordinance in proceedings under ORS 813.410.”