dissenting.
I am unable to agree with the majority’s disposition of Gundersen’s principal argument—that he was affirmatively misled concerning his statutory right to obtain an independent test conducted by a person of his own choosing.
Gundersen was arrested for DWI after being involved in an automobile accident in Anchorage. He was given an Intoximeter test and registered a reading of .264. No separate sample of Gundersen’s breath was taken or preserved. After Gundersen had taken the Intoximeter test, however, an Anchorage police officer read him a “Notice of Right to an Independent Test.” The notice stated:
You are ... under arrest for the offense of driving while intoxicated. You have provided a sample of your breath for analysis on the Intoximeter 3000. You also have a right to obtain an independent test of your blood alcohol level. If you wish to have an independent test you will be transferred to a local medical facility where a sample of your blood will be drawn by qualified personnel at no charge to you. The blood sample will be stored at the medical facility for a period of 60 days. It will be your responsibility to make arrangements for analysis of your blood sample. The analysis itself will be done at your own expense. At this time you must decide whether or not you want an independent test performed. A refusal to decide will be taken [as] a waiver of your right to obtain an independent test.... I would like you to verbally answer whether you do or do not want a separate test, then check the box, read aloud the box that you’ve checked and sign here at the bottom, sir. Do you have any questions about the form, Mr. Gundersen?
Gundersen declined the offer of an independent test.
Prior to trial, Gundersen moved to suppress the results of the Intoximeter test, alleging, inter alia, that his rights under the Alaska Constitution had been violated by the municipality’s failure either to preserve a separate breath sample or to inform him fully of the statutory right to an independent chemical test of his own choosing. District Court Judge Natalie K. Finn denied Gundersen’s motion, finding that the offer of an independent blood test that had been communicated to Gundersen was sufficient to protect his constitutional and statutory rights. Gundersen argues on ap*116peal that the district court erred in its ruling.
The analysis of Gundersen’s argument begins with the recognition that it addresses two separate rights. The first right arises under the Alaska Constitution’s guarantees of confrontation and due process and was initially recognized by the Alaska Supreme Court in Lauderdale v. State, 548 P.2d 376 (Alaska 1976). There, the court, in order to provide a means of confronting and cross-examining breathalyzer evidence, required the police to preserve and make available for inspection ampoules used in administering individual breathalyzer tests.
The second right springs from Anchorage Municipal Code (AMC) § 09.28.023(E) and its counterpart under state law, AS 28.35.033(e), which permit an individual arrested for DWI, after submitting to an Intoximeter test, to choose any qualified person to administer an independent chemical test:
The person tested may have a physician, or a qualified technician, chemist, registered nurse, or other qualified person of his or her own choosing administer a chemical test in addition to the test administered at the direction of a law enforcement officer. The failure or inability to obtain an additional test by a person does not preclude the admission of evidence relating to the test taken at the direction of a law enforcement officer; the fact that the person under arrest sought to obtain such an additional test, and failed or was unable to do so, is likewise admissible in evidence.
Though in many respects the constitutional and statutory rights are closely related, they are nevertheless conceptually independent and require separate consideration. Here, it is necessary to consider only Gun-dersen’s statutory right. This court has previously noted that the primary concern of the statutory right is much the same as the underlying concern of the Lauderdale/Serrano constitutional requirement: “to provide a defendant with an independent basis for challenging a breathalyzer reading.” Ward v. State, 733 P.2d 625, 627 (Alaska App.1987), rev’d on other grounds, 758 P.2d 87, (Alaska, 1988).
Nevertheless, the precise scope of the statutory right significantly differs from that of the constitutional right. In one respect, the statutory right is narrower than the constitutional requirement, since the statute imposes no obligation on the police to assist DWI arrestees in obtaining an independent test. In another respect, however, the statutory right is broader than the constitutional right, because the statute expressly extends to the accused the choice of any competent form of independent testing and any qualified person to administer the independent test. See Whisenhunt v. State, 746 P.2d 1298, 1299 (Alaska 1987).
In Palmer v. State, 604 P.2d 1106 (Alaska 1979), the Alaska Supreme Court held that the police need not expressly advise persons who are arrested for DWI of their statutory right to an independent chemical test of their own choosing. In this appeal, Gundersen questions whether the holding in Palmer remains valid under current DWI and implied consent statutes. This issue need not be decided, for it is evident that, when the police do undertake to provide information concerning the right to independent chemical testing, the information must, at a minimum, be reasonably accurate and complete, so that arrestees are not misled as to the nature and scope of their statutory rights.
Our past decisions have recognized as much. In Ward, 733 P.2d 625, Ward was arrested for DWI and underwent an Intoximeter test. A sample of his breath was preserved to provide an opportunity for independent testing. In addition, the police offered to transport Ward to either of two Anchorage hospitals to have a blood sample drawn and preserved for later testing. He declined to be tested at either of the two hospitals suggested by the police and insisted on being taken to a third hospital. The police refused to comply with this request.
On appeal, Ward claimed that the failure by the police to take him to a hospital of his choice deprived him of both his constitu*117tional and statutory rights to an independent test. Finding that the police had satisfied Ward’s due process rights under Lauderdale and Serrano by preserving a sample of his breath, this court rejected his constitutional claim.
We separately held that Ward had not been denied his statutory right to an independent chemical test of his own choice. In so doing, we reasoned that, having complied with the Lauderdale/Serrano requirement by preserving a separate breath sample, the police had no obligation to assist Ward in effectuating his statutory right to obtain an independent chemical test of his own choice. We found that, even though the police had declined to help Ward obtain the independent test of his choice, they had apparently neither said nor done anything to discourage him from obtaining that test on his own accord.
Implicit in our holding in Ward is the conclusion that Ward’s statutory right to an independent test would have been violated had he actually been deterred in any significant way from obtaining an independent test of his own choosing.1
Following the issuance of this court’s opinion in his case, Ward petitioned the Alaska Supreme Court for hearing, challenging, among other things, our conclusion that the police did not interfere with his right to an independent test. The supreme court reversed this court’s decision. In reversing, the supreme court agreed with Ward’s contention that the police conduct in his case had interfered with his right to an independent test. Emphasizing the fact that, under the statutory language, “Ward had the right to have a blood test performed by ‘a ... qualified person of [his] own choosing ...,’” the supreme court concluded that “[t]he Troopers denied Ward the right to obtain such a test after they had agreed to transport him to [Alaska Native Medical Center]. This was a violation of Ward’s right under AS 28.35.-033(e).” Ward, 758 P.2d 87, at 89-90.
The supreme court’s decision in Ward thus made explicit what this court’s previous decision left implicit: although the police may have no affirmative duty to provide information or assistance, once they do advise or assist persons arrested for DWI in obtaining an independent test, any significant restriction of the right to have the test performed by a person of the arrested person’s own choosing will constitute a violation of the statutory guarantee. Id. The appropriate remedy for such violations is the suppression of the Intoximeter test results. Id. at 90-91.
If it was not clear before the supreme court’s decision in Ward, it certainly seems clear now that the advice read to Gunder-sen by the police in the present case directly contravened the statutory guarantee of an independent test of choice. In the present case, as in Ward, the police extended a limited offer of assistance in securing an independent chemical test. In contrast to Ward, however, the present case involved more than a limited offer of assistance: the advice contained in the “Notice of Right to an Independent Test” strongly suggested that the exclusive option open to Gundersen for obtaining an independent chemical test was an immediate blood test in police custody, at a hospital of the municipality’s choosing. The notice that was read to Gundersen purported to define his “right to obtain an independent test,” without any attempt to make it clear that the limited right described in that notice was not Gundersen’s only right. The notice seemingly left Gundersen a single choice, stating, “if you wish to have an independent test you will be transferred to a local medical facility where a sample of your blood will be drawn ...” (emphasis added). The notice did not inform Gundersen that his failure to request the offered blood test would result only in the loss of police assistance; instead, it flatly told him that refusal to immediately request the offered *118test would amount to a waiver of his right to any independent testing:
At this time you must decide whether or not you want an independent test performed. A refusal to decide will be taken [as] a waiver of your right to obtain an independent test.
By effectively characterizing the offer of an immediate blood test as Gundersen’s sole opportunity for an independent test, the “Notice of Right to an Independent Test” was substantially misleading. If Gundersen had previously been unaware of his right to an independent test, he would have had little reason to disbelieve the unduly restricted explanation of that right given by the police. Even if Gundersen had been generally aware of the statutory right to an independent test, he would almost certainly have been led to conclude that his right was the limited right described in the notice. Because the notice described a test that was to be conducted in a facility chosen by the police and under circumstances virtually assuring police access to the test results, Gundersen might well have decided to decline the offer without giving any thought to the desirability of a test conducted by a person of his own choosing. Having been informed that he must either request the test immediately or waive his right to an independent test altogether, Gundersen would thereafter have had no reason or motivation to seek an independent test on his own. Thus, the effect of the improper notice could only have been to discourage Gundersen from making any effort to obtain an independent test of his own choosing.
The majority of the court reaches a contrary conclusion. In defense of its holding, the majority, on the one hand, trivializes the significance of the statutory right to an independent test of the defendant’s choosing and, on the other hand, suggests that Gundersen has failed to show prejudice: “[I]f Gundersen was in fact confused about his rights and misled by the police, the burden was on him to prove this.” In support of this latter contention, the majority cites Graham v. State, 633 P.2d 211, 215 (Alaska 1981). Graham, however, is inapposite.
Graham was an appeal from an administrative revocation of a driver's license;' the revocation was based on Graham’s refusal to take a breath test following her arrest for DWI. On appeal, Graham argued that there is an inherent potential for confusion when a person arrested for DWI is asked to submit to a breath test after being given Miranda warnings describing the right to remain silent and the right to immediate appointment of counsel. Graham maintained that her refusal could not be used as a basis for revoking her license, because her arresting officer did not explain that her Miranda rights did not apply to the statutorily required breath test.
The court in Graham agreed that the refusal to take a breath test cannot be used against a defendant when it results from confusion between the scope of Miranda rights and the duties imposed by the implied consent statute. Nevertheless, a majority of the court held that Graham had the burden of establishing that her refusal had actually resulted from confusion over the nature of her rights. After reviewing the record, the majority concluded that Graham had failed to meet this burden.
Under the circumstances in Graham, where there was an inherent possibility of confusion between two apparently contradictory demands, the requirement that the accused demonstrate prejudice in a subsequent administrative proceeding for the revocation of her license is understandable. It makes good sense to expect that most individuals who refuse to take a breath test in mistaken reliance on their Miranda rights will either change their mind or make their confusion known when expressly given the requisite implied consent warning. It is not unreasonable to require those individuals who persist in their refusal to take the test without expressing any confusion as to their rights to make an affirmative allegation and showing of actual confusion before administrative action against their license is precluded.
The only relevant issue in such circumstances is what actually motivated the defendant’s decision not to take the test. For *119example, if Graham had demonstrated that she was actually confused as to the scope of her rights when she refused the breathalyzer, she presumably would not have been required to make an additional showing that she would have submitted to the test had she not been confused.
In contrast, under the circumstances of the present case, the issue of prejudice does not hinge on what actually did happen. The question of what actually motivated a person to decline an offer of assistance in obtaining an independent test is not determinative. Prejudice could be established by showing either that the incorrect advice actually led the accused to decline police assistance in obtaining an independent test or that the accused might have elected to seek independent testing—either with police assistance or on his own accord after release on bail—had correct advice been given or had no advice been given at all.
The danger inherent in “Notice of Right to an Independent Test” is not that it might confuse but rather that it might mislead. The logical response of a person exposed to the incorrect advice contained in the notice would be to believe it and to make a choice based on the assumption that the advice was correct. No confusion whatsoever would be involved. The only people who might be confused would be those rare individuals who were expressly aware of the specific scope of the statutory right to an independent test.
In opposition to the situation in Graham, there is no reason to expect that persons who have been misled as to the scope of their statutory right to an independent test would be in any position to recognize the conflict between the advice contained in the “Notice of Right to an Independent Test” and the provisions of the law creating the right to an independent test of choice. The possibility that misleading advice has been given will not even occur to most people until a later date, when they first come into contact with an informed attorney. By that time, the question of whether any prejudice resulted from the misleading advice will involve little more than subjective, after-the-fact speculation about what might have happened had the police done things otherwise.
While on occasion something said or done at the time an independent test was refused might make it clear that the defendant would have declined independent testing under any conceivable circumstances, in virtually all other cases defendants could honestly state that they might have made a different choice with respect to independent testing had different advice been given by the police. The purely conjectural, post hoc, and subjective context within which the issue of prejudice would almost inevitably have to be decided would predictably reduce the process of establishing prejudice to a hollow, formalistic ritual in which the defendant would be paraded to the stand to testify confidently that things might have been different if they had been different.
The artificiality of attempting to determine actual prejudice in this situation is one of the chief reasons why no showing of prejudice has been deemed necessary in analogous situations involving incorrect or misleading advice. In the area of Miranda rights, for example, violations have consistently been found to require reversal without any need to ask whether any actual harm resulted to the accused. See, e.g., Webb v. State, 756 P.2d 293 (Alaska 1988).
. In the present case, Gundersen undoubtedly could have testified at his suppression hearing that he might have elected to have an independent test performed by a person of his own choosing but for the improperly restricted advice that he was given by the police. In all likelihood he did not so testify because his attorney—guided by the analogous area of Miranda cases and unaware of any prior decisions adopting a contrary rule in the circumstances of the present case—perceived no need for a pro forma testimonial claim of harm.
It seems doubly unfair for the majority of the court to announce a procedural rule requiring proof of prejudice and to fault Gundersen for failing to comply with that rule. The rule did not exist until today. If the majority of this court were truly con*120vinced of the need for a showing of prejudice in cases such as this, the appropriate measure would be a remand to allow Gun-dersen to testify on the issue. As it is, it appears to me that the majority of the court is doing little more than embracing a strained application of an ill-conceived procedural technicality in order to justify the conviction of a person whom the court perceives to be obviously guilty.
Because there is an inherent risk that the misleading notice may in fact have discouraged Gundersen from seeking an independent chemical test of his own choosing, I would hold that the notice violated his rights under AMC § 09.28.023(e) and that the violation required suppression of his Intoximeter result.
. Likewise, in Anchorage v. Serrano, while recognizing that the prosecution's constitutional duty to provide a reliable means of verifying the Intoximeter might be satisfied by offering to assist the accused in securing an independent test, we emphasized that it would then be necessary to clearly and expressly inform the accused of the statutory right to an independent test of the accused’s choosing. Serrano, 649 P.2d at 256 n. 5 (Alaska App.1982).