BISTLINE, Justice, concurring and dissenting.

I.

I concur generally with the views set forth in the separate opinion of Justice Shepard, and especially emphasize my agreement with him that the majority errs in relying upon Mackey v. Montrym, 443 U.S. 1, 99 S.Ct. 2612, 61 L.Ed.2d 321 (1979) and Dixon v. Love, 431 U.S. 105, 97 S.Ct. 1723, 52 L.Ed.2d 172 (1977) for the proposition that an arresting officer may seize a driver's license. If I were to agree with the majority, it would have to be on the basis of an implied grant of authority found by a strained reading of I.C. § 49-352(2)(a). For certain I do not succumb to the proposition that the Court's self-promulgated Idaho Misdemeanor Criminal Rule 9.2 is anything but substantive law — and the making of substantive law belongeth to the legislature — provided that it is constitutional. State v. Currington, 108 Idaho 539, 700 P.2d 942 (1985), was wrongly and poorly decided. See the separate dissenting opinions of Bakes, J., and Bistline, J., supra.

II.

Neither the author of today's majority opinion nor I sat on Mills v. Bridges, 93 Idaho 679, 471 P.2d 66 (1970), which the majority declares stands for the proposition that "a person does not have a constitutional right to consult with an attorney before deciding whether to submit to an evidentiary test for alcohol concentration." I do not so read Mills. In that case, the arrested driver was given Miranda warnings, including "advising her of her right to counsel and right to remain silent. . . . She was advised that she would have an opportunity to call her attorney when they arrived at the sheriff's office. . . . Appellant was able to contact her attorney by phone." Mills, supra, 93 Idaho at 680, 471 P.2d at 67. Meanwhile, the one-hour time limit for giving consent had expired. The issue on the appeal was whether or not the arrested driver gave her consent within the hour, which the Supreme Court found problematical, and also found that the driver "never offered to take the test." Mills, supra, 93 Idaho at 683, 471 P.2d at 70. Any doubt as to what the appeal involved is resolved by reading the clarifying separate opinion of Justice McQuade:

In advising a motorist of his right to counsel the officer is complying with the constitutional rights of a motorist in regards to criminal action which may be pressed against such motorist. To effectively implement Miranda warnings the officer must make available means by which a driver can contact an attorney for the purpose of obtaining information and advice with regard to his legal rights including those relating to a blood alcohol test. The attorney may inform the driver to take the blood alcohol test as a means to positively establish the blood alcohol content.

Mills, supra, 93 Idaho at 683, 471 P.2d at 70 (footnote omitted).

Clearly, the right to consult with counsel was recognized in that case, it was extended, and it was utilized. Moreover, and unmentioned in the Court's opinion, in addition to Miranda warnings under mandate of the federal constitution and the Miranda case, the arrested driver was in that case, and in this, clearly entitled to be informed of the right of counsel. I.C. § 19-853(a). A fortiori, it is because a person is entitled to counsel, but may not know it, which provides the basis of the requirement of being so informed. The majority's reliance on I.C. § 49-352 is clearly misplaced. Nor would I allow that I.C. § 18-8002, although better drafted than § 49-352, is valid. Not only does it conflict with I.C. § 19-853(a), but it is constitutionally infirm as well.

In turning away from Mills, supra, it is to be observed that this is the authority which the district court relied upon in affirming the magistrate's order of 120-day supervision. As pointed out by defendant's counsel — and entirely undiscussed in the majority opinion, Mills should be reconsidered because the suspension in that case was administratively imposed by order of the Director of the Department of Law Enforcement — whereas in this case the suspension order was judicially ordered by a magistrate of the judicial system. This is no small item, and proves the defendant's contention that the suspending of a license by a court smacks more of a criminal sanction than it does of a civil sanction. Going to the pertinent portion of defendant's brief in this Court (which might as well not have been written insofar as it seems to have aroused the majority's attention):

Another reason that the right to counsel exists even in a truly administrative setting under similar "implied consent" provisions was set forth recently by a federal court in South Dakota:

The civil and criminal nature of proceedings initiated against the person suspected of driving while under the influence of liquor or drugs is inextricably intertwined. Those jurisdictions which hold that the arrested driver does not have a right to contact an attorney prior to making a decision to submit to testing have established a clear demarcation between the initiation of civil and criminal proceedings. This Court finds the distinction much more blurred than these courts would have us believe.

* * * * * *

Those courts that rely on the civil/criminal distinction to hold that a person does not have the right to contact an attorney prior to making a decision regarding testing have ignored the fact that the person is originally arrested for a criminal offense. It is at the time of arrest that certain rights are afforded to the accused, including the right to consult with an attorney prior to making a statement. The obvious and intended effect of the implied consent law is to coerce the driver suspected of driving under the influence to consent to the sobriety test. The results of the blood alcohol level are then admissible against the driver in a subsequent prosecution for DWI. In effect the threat of license revocation (the civil proceeding) is a tool employed at the time of arrest to gather evidence against the driver to utilize in a later criminal prosecution. Prideaux v. State Dept. of Public Safety, 310 Minn. 405, 247 N.W.2d 385, 388-89 (1976). To say that the person does not have a right to contact an attorney prior to deciding whether to take the sobriety test, because the license revocation proceeding, initiated once the test is refused, is civil in nature totally ignores the fact that the person is in custody pursuant to an arrest on a criminal charge. The proceedings are all criminal in nature until testing is actually refused. Heles v. State of South Dakota, 530 F. Supp. 646, 651-52 (D.S.D. 1982).

The decision in Heles was appealed to the Eighth Circuit, but was vacated on the grounds of mootness, as Mr. Heles had died in the interim. Heles v. State of South Dakota, 682 F.2d 201 (8th Cir. 1982).

Other courts have recognized a constitutional right to consult with counsel at the time a decision of whether to submit to an evidentiary test for alcohol concentration is to be made. Prideaux v. State Dept. of Public Safety, Minn. 247 N.W.2d 385, 387-391 (1976), followed reasoning similar to that in Heles even though the decision was reached on an independent statutory ground. Other decision, Troy v. Curry, 30 Ohio Misc. 144, 303 N.E.2d 925 (1973) and People v. Gursey, 22 N.Y.2d 224, 292 N.Y.S.2d 416, 418, 239 N.E.2d 351, 352 (1968), also recognize the right to counsel in this situation.

The only other argument which can be made against the constitutional right to counsel in the factual situation at hand is that the proceeding was not at a point where the right to counsel attached. However, the right to counsel under the Sixth and Fourteenth Amendments of the U.S. Constitution attaches when a critical stage in the proceeding is reached. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1965). In State v. Fitzsimmons, 93 Wn.2d 436, 610 P.2d 893, 897 (1980), the court quoted from another Washington case, Tacoma v. Heater, 67 Wn.2d 733, 409 P.2d 867, 871 (1966), which, along with noting the unique nature of the charge of driving under the influence, also stated:

At what time was a "critical stage" reached in defendant's case? It was no later than the moment when, immediately after the police officers had conducted their tests for sobriety and had interrogated the defendant, they charged him with the offense.

Appellant's Brief, pp. 28-31.

Add to the foregoing the provisions of I.C. § 19-853(a) and a clear case of constitutional violation is made.

III.

The majority cites Rudd v. Rudd, 105 Idaho 112, 666 P.2d 639 (1983), for the proposition that:

The due process guarantees derived from both the United States Constitution and the Idaho Constitution are substantially the same.

Although I did not do so at the time I concurred in the Rudd opinion, having since learned that a more wary course is a more wise course, State v. Peterson, 81 Idaho 233, 340 P.2d 444 (1959), said by the author of the Rudd opinion to support the foregoing quotation, has been revisited. What was actually said in Peterson is this:

Our constitutional provisions relating to searches and seizures and due process are substantially the same as those of the United States Constitution.

Peterson, supra, 81 Idaho at 236, 340 P.2d at 447 (emphasis added).

The difference between the two phrases is astounding. More astonishing, however, is the misuse of literary license at this level of the judiciary.

I agree that the provisions of the two constitutions are much alike. But not so with the guarantees. The guarantees of the United States Constitution amount only to the protections derived thereby from interpretations of the Supreme Court of the United States, recently the Burger Court. The guarantees of the Idaho Constitution are the protections afforded thereby through interpreting opinions of this Court. The High Court itself has pointed out time after time that the supreme courts of the various states are wholly at liberty to increase those protections beyond the extent of the holdings of the High Court. Accordingly, I disavow the erroneous statement in Rudd.

This is also an opportune occasion to remark on another of our recent opinions wherein I was beguiled into accepting at face value a misapplication of the actual statement of Peterson. That case is State v. Cowen, 104 Idaho 649, 662 P.2d 230 (1983), also a 1983 case. Therein this remarkable passage is found:

We note at the outset that the provision of the Idaho Constitution, art. 1, § 17, prohibiting unreasonable searches and seizures, is to be construed consistently with the fourth amendment to the United States Constitution. State v. Oropeza, 97 Idaho 387, 545 P.2d 475 (1976); State v. Peterson, 81 Idaho 233, 340 P.2d 444 (1959).

Having no recollection of having focused on it before, I now disavow the statement, noting at the same time that it was mere obiter, and not necessary to our decision in that case. Anyone who can find in State v. Oropeza, 97 Idaho 387, 545 P.2d 475 (1976) and Peterson, supra, any support whatever for the above-quoted statement in Cowen should merit a substantial reward. Our holding relative to the automobile search in Cowen was simply that Cowen did not have the requisite standing to challenge the stop of the automobile. It may be noted that in the Oropeza opinion authored by Justice Mcquade, joined by Justices Donaldson and Bakes, a footnote there also mentioned the substantial similarity of the search and seizure prohibitions of the two constitutions, citing the Peterson case, supra, and more importantly, citing also State v. Arregui, 44 Idaho 43, 254 P. 788 (1927). Arregui made it indeed clear that the Idaho Court was well aware of its obligation to uphold the independent provisions of our Idaho Constitution, as well as complying with the obligation of upholding the Constitution of the United States. I report that the Supreme Court of the United States has in recent years and on many occasions pointedly stated that although the various states are bound to apply the fourth amendment, and other fundamental rights guaranteed by the federal constitution, the states (through their own constitutions, laws, and courts) are free to fashion greater protections for their people than those federally afforded. Those cases are so legion as to be unnecessary of citation or further comment. Suffice it to say that many enlightened states have done so. Our Idaho legislature in the field of providing legal representation to indigents has dictated that those indigents accused of crime shall have representation of the caliber that those more fortunate can obtain. The past few years hopefully reflect my indeavor to prod this Court into striving for the stability of establishing our own case law interpreting Idaho's Constitution. See State v. Newman, 108 Idaho 5, 10, 696 P.2d 856, 861 (1985):

[F]ederal and state constitutions derive their power from independent sources. It is thus readily apparent that state courts are at liberty to find within the provisions of their own constitutions greater protection than is afforded under the federal constitution as interpreted by the United States Supreme Court. See Oregon v. Hass, 420 U.S. 714, 719, 95 S.Ct. 1215, 1219, 43 L.Ed.2d 570 (1975). This is true even when the constitutional provisions implicated contain similar phraseology. Long gone are the days when state courts will blindly apply United States Supreme Court interpretation and methodology when in the process of interpreting their own constitutions.