concurring in part and dissenting in part.
23. I concur in the dispositions under Subsections II B, C and D of the majority opinion. I respectfully disagree, however, with the majority’s holding under Subsection II A that NMSA 1978, Section 66-8-102 (Repl.Pamp.1994) does not violate Defendant’s right to due process. I would conclude instead that the failure to advise Defendant of the possible criminal consequences of his refusal to take a breath test violated Defendant’s right to due process.
I. DISCUSSION
24. The majority relies primarily on South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983) as the basis for affirmance on this issue. I, however, believe Neville is distinguishable and would rely instead on Roberts v. Maine, 48 F.3d 1287 (1st Cir.1995).
A. Test Used To Determine Violation Of Due Process
25. To determine or analyze whether Section 66-8-102 of New Mexico’s Implied Consent Act violates a DWI suspect’s right to due process, we must consider three factors:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976).
1. The First Mathews Prong Or Factor
26. Defendant’s unwarned refusal constitutes an element of the crime of which he was convicted (Aggravated DWI) and for which he must serve a mandatory sixty days in jail. See Marez v. State, Taxation & Revenue Dep’t, Motor Vehicle Div., 119 N.M. 598, 600, 893 P.2d 494, 496 (Ct.App.1995) (characterizing refusal to submit to chemical test as element of the offense of Aggravated DWI). I believe that the mandatory jail time Defendant incurred represented a significant liberty interest that was affected by the State’s failure to advise him of the criminal consequences of refusing to submit to a chemical test. See Roberts, 48 F.3d at 1292 (mandatory sentence for refusal was significant liberty interest affected by state’s refusal to permit defendant to call attorney).
2. The Second Mathews Prong Or Factor
27. We next assess the risk of erroneous deprivation of Defendant’s liberty interest under the existing procedures and what value any additional safeguards would provide. In the implied consent to chemical testing context, “[t]he risk that an erroneous deprivation of liberty will occur is roughly commensurate with the relevance the unwarned consequence bears to the decision to refuse testing.” Roberts, 48 F.3d at 1303-04 (Cyr, J., concurring). The mandatory incarceration for Aggravated DWI is highly relevant to the decision whether to submit to a chemical test. Relying on this Court’s opinion in State v. Scussel, 117 N.M. 241, 871 P.2d 5 (Ct.App.1994), the majority minimizes the risk, holding that there is no obligation to warn Defendant of the criminal implications of his refusal. I am unpersuaded.
28. In Scussel, I concede that this Court stated it knew “of no requirement that a party must be informed of every possible consequence of an action[.]” Id. at 245, 871 P.2d at 9. The consequence complained of in Scussel, however, was the waiver of an evidentiary argument that the defendant’s refusal to submit to a chemical test had helped to create. That is far different from the incarceration consequence in this appeal. Our Supreme Court has noted the constitutional requirements for an implied consent law in a case where the only interest at stake was a driver’s license revocation. In re McCain, 84 N.M. 657, 506 P.2d 1204 (1973). One necessary safeguard was that “the person be informed of the consequences of refusal to submit to a test.” Id. at 661, 506 P.2d at 1208. Although I agree that a suspect need not be informed of every possible consequence of refusing to submit to a chemical test, I would hold that the important liberty interest at stake in this appeal and the relevance the unwarned consequence bears to the testing decision should require a warning to Defendant of the mandatory sentence.
29. As I noted previously, the majority concludes that Neville is controlling. In Ne-ville, a driver’s refusal to submit to a chemical test was admitted into evidence at his DWI trial. He had been warned of the administrative consequences for refusing to submit to a chemical test, but not that his refusal could be used against him at trial to prove the substantive charge against him. The Supreme Court held in Neville that the administrative warning did not implicitly assure the driver that there would be no other consequences to his refusal and that the warning alerted the driver that refusal was not a “safe harbor.” Neville, 459 U.S. at 566, 103 S.Ct. at 924.
30. In Roberts, on which I would rely to reverse, the First Circuit declined to extend Neville to cover the unwarned incarceration of uncounseled drivers who refused to submit to a chemical test. Roberts, 48 F.3d at 1295. Much of the reasoning in Roberts applies to this appeal. Defendant’s liberty interest in freedom from incarceration is of greater magnitude than the Neville driver’s interest in an evidentiary issue. See Roberts, 48 F.3d at 1295. Additionally, the consequence about which the State failed to warn Defendant is “irrevocable and irrebuttable,” but the evidentiary disadvantage complained of in Ne-ville could be “rebutted, mitigated or otherwise explained ... at trial.” See Roberts, 48 F.3d at 1295. An adequate warning of the mandatory, minimum incarceration that would follow Defendant’s refusal was crucial to protecting his liberty interest. Cf. id. at 1294 (finding that permitting defendant to call attorney was crucial to procedural safeguard). I believe that we should decline to extend Neville in New Mexico to cover the unwarned mandatory incarceration imposed on drivers who refuse to submit to a chemical test.
31. The probable value of the proposed additional procedural safeguard must be evaluated before the second prong of the Mathews analysis is satisfied. Mathews, 424 U.S. at 335, 96 S.Ct. at 903. The implied consent advisory or warning serves two purposes: to give the suspect “a fair chance to understand his or her rights,” In re Suazo, 117 N.M. 785, 793, 877 P.2d 1088, 1096 (1994); see also State v. Trevino, 127 Wash.2d 735, 903 P.2d 447, 453 (1995) (purpose of advisory is to give motorist an opportunity to make a knowing and intelligent decision whether to submit to a test), and to encourage drivers to submit to chemical testing. The purposes of a warning are defeated by the implied consent advisory employed in New Mexico. By failing to advise suspects that a substantial loss of liberty is at stake, the State fails to offer suspects an opportunity to understand their rights and to make an intelligent decision and, most important, to encourage submission in order to avoid mandatory incarceration. See Roberts, 48 F.3d at 1304 (Cyr, J., concurring). Therefore, the probable value of warning drivers of the mandatory sentencing enhancement so that they may have a fair chance to understand the consequences of their decision is great.
3. The Third Mathews Prong or Factor
32. The third prong of the Mathews analysis requires us to consider the government’s interest and the administrative burden the additional procedural requirement would entail. Mathews, 424 U.S. at 335, 96 S.Ct. at 903. The State has a strong interest in obtaining evidence through the administration of chemical tests. Suazo, 117 N.M. at 790, 877 P.2d at 1093. Cooperation of DWI suspects would be more rather than less likely if they were informed of the most serious consequences of refusing the chemical tests. See Roberts, 48 F.3d at 1304 (Cyr, J., concurring).
33. The State claims it would be unduly burdened by the requirement of an additional warning, asserting that officers would need to discover the prior DWI history of each suspect to accurately warn of the minimum confinement a refusal would mandate. I disagree. A simple warning to suspects would suffice to inform them that their refusal could result in some loss of liberty. See id. I suggest the following as an example — “In the event that you are convicted of DWI, your refusal to submit to a chemical test may result in minimum mandatory incarceration of sixty days.”
II. CONCLUSION
34. I would hold that, under the Mathews three-prong analysis, the failure to advise or warn Defendant of the possible criminal consequences of his refusal to take the breath test violated Defendant’s right to due process. Consequently, I would reverse the aggravated portion of Defendant’s conviction for DWI and remand to the District Court with instructions to resentence him to the mandatory minimum of thirty days, after deducting the sixty days mandatory sentence imposed as a result of the aggravation. The majority having decided otherwise, I dissent.