dissents.
¶43 I dissent.
¶44 As the Court notes at ¶ 36, the State represented in its petition to revoke R.L.H.’s probation that it had no intention of seeking a separate determination that R.L.H. had committed the offense of criminal possession of dangerous drugs. R.L.H. was therefore explicitly led to believe that the admissions she would make in court would be used solely as a basis for the disposition of the State’s petition to revoke her *532probation.
¶45 As the majority also correctly notes, if the State has not compelled an individual to incriminate herself, she must invoke the privilege in order for it to attach. See ¶ 32, above. However, the majority concludes that R.L.H. was not compelled in the “classic penalty” sense and thus lost the benefit of this privilege because she failed to invoke it. This is where we part ways.
¶46 In Fuller, we explained that the “classic penalty situation”is that instance in which an individual’s access to the Fifth Amendment privilege against self-incrimination is foreclosed because the individual is threatened with a penalty should he or she invoke it. Fuller, 276 Mont. at 162, 915 P.2d at 813 (citing Murphy, 465 U.S. at 434, 104 S.Ct. at 1145-46). In the situation at hand, R.L.H. was compelled to confess to methamphetamine use because had she refused to do so, the State would have recommended that her probation be revoked and that she be incarcerated; this would mean, obviously, that she would not receive drug treatment at Shodair. Although the majority asserts that R.L.H. knew that her admission of methamphetamine use could result in a restriction on her liberty (¶ 36), probationary placement in a treatment program at Shodair is a far cry from incarceration. Simply put, R.L.H. was given two options: admit and get treatment or deny and go to jail.
¶47 The majority further asserts that R.L.H. was advised that the disposition of her Juvenile Admission and Waiver of Rights could include placement in a State Correctional Facility. See ¶ 36, above. This is true for the disposition of the petition to revoke on the conviction R.L.H. already faced. The Admission and Waiver states that, among other things, the disposition may include counseling, community service, probation, placement with the Department of Corrections, and other serious consequences. What the Admission and Waiver does not say is that additional charges could be filed against R.L.H. as a result of her admission.
¶48 In Fuller, 276 Mont. at 162, 915 P.2d 813 (quoting Murphy, 465 U.S. at 434, 104 S.Ct. at 1146), we explained, “A State may require a probationer to appear and discuss matters that affect his probationary status; such a requirement, without more, does not give rise to a self-executing privilege. The result may be different if the question put to the probationer, however relevant to his probationary status, calls for answers that would incriminate him in a pending or later criminal proceeding.’’(Emphasis added.) This is precisely the situation before us. Questions put to probationer R.L.H. indeed incriminated her in a *533later criminal proceeding. Furthermore, R.L.H. was never advised that her statement could be used to support subsequent criminal proceedings against her should she violate the terms of her continued probation. See ¶ 32, above.
¶49 A command to speak, under threat of loss of liberty, implicitly forecloses the option of remaining silent. Fuller, 276 Mont. at 163, 915 P.2d at 814. In Fuller, the defendant was ordered to continue his participation in a sex offender treatment program-to include the disclosure of his offense history-or face probation revocation and incarceration. Fuller, 276 Mont. at 162, 915 P.2d at 813. The self-incriminatory evidence Fuller then divulged caused him to be subsequently charged with and convicted of three additional crimes. Fuller, 276 Mont. at 163, 915 P.2d at 814. In the situation before us, R.L.H. was ordered to divulge her methamphetamine use in order to get drug treatment at Shodair, or face probation revocation and incarceration. The self-incriminatory evidence she then divulged caused her to be subsequently charged with and convicted of a crime. In Fuller, we concluded that if the State chooses to compel answers to incriminating questions, it cannot use those answers against the defendant in a later criminal proceeding. Fuller, 276 Mont. at 167, 915 P.2d at 816. The same result is compelled here.
¶50 Finally, it is troubling to me that we find it of no consequence that the State made a representation to R.L.H. that it failed to honor. The State made an affirmative representation during the revocation proceedings that it would not seek a separate determination that she had committed the offense of criminal possession of dangerous drugs. True, R.L.H. absconded. Nonetheless, it seems to me that if the State wishes to reserve the right to use a defendant’s incriminating statement against her should she violate the probation conditions, the State should make this clear on the record before the admissions are made. A properly informed defendant can then either decline to make the admission and suffer the consequences, or proceed with the full knowledge that should she fail to comply with the terms of probation, her statements may and likely will be used against her to support independent felony charges at a later time. In this respect, I agree with the decision of the California Supreme Court in Coleman, 533 P.2d 1024.
¶51 For the foregoing reasons, I dissent from the majority’s conclusion that R.L.H.’s incriminating statements were properly admitted as evidence at trial.