(concurring specially)-
I concur in the result. The majority correctly states existing law. I write separately to point out a serious problem with the way we have approached this issue. We continue to follow the reasoning of Weierke v. Commissioner of Pub. Safety, 578 N.W.2d 815 (Minn.App.1998), and Brooks v. Commissioner of Pub. Safety, 584 N.W.2d 15 (Minn.App.1998), revieiu denied (Minn. Nov. 24, 1998), which assumes that the test is fair and there is no manipulation of the results. What defense counsel in this case, and in other previous cases, has continued to argue, and quite logically, is that there is a tremendous potential for manipulation, and the state is in control of the manipulation. The specter of manipulation could be chased away if the Intoxilizer 5000 was programmed to print out the BAC instantaneously, and then shut down, when the machine gives the signal that an adequate breath sample has been taken in. Both sides agree that the machine registers a visible signal, by ear and/or sight, when the machine has received an adequate sample. The stipulated facts are set out correctly in the majority. Stipulated fact number two shows that the officer had Rader continue to blow after the machine registered an adequate sample. Stipulated fact number three tells us that the reported concentration continues to rise (to the driver’s detriment) until the person is told to stop blowing. Quite honestly, I have no idea where the State of Minnesota in a criminal case gets the authority to require a suspect, under penalty of the separate crime of test refusal, to give more incriminating evidence than the statute requires. See Minn.Stat. § 169.121, subd. la (1998) (providing “[i]t is a crime for any person to refuse to submit to a chemical test of the *326person’s blood, breath, or urine” for alcohol concentration).
Minnesota’s implied consent law, which is civil and provides civil penalties, has been buttressed by the crime of test refusal, but still avoids all Fifth Amendment constitutional attacks on the grounds that it is forced self-incrimination by a theory that the Fifth Amendment does not attach to civil implied consent laws. See Goldsworthy v. State, Dep’t of Pub. Safety, 268 N.W.2d 46, 49 (Minn.1978) (holding implied consent law is remedial in nature and intended to protect public safety); Butler v. Commissioner of Pub. Safety, 348 N.W.2d 827, 828 (Minn.App.1984) (holding Fifth Amendment does not attach to implied consent proceeding because it is civil in nature and not criminal).
But this case is a pure criminal case, a DWI conviction. What the state can do, so far, and avoid a constitutional attack on the grounds of compelled self-incrimination, is require the driver to give an adequate breath sample. Appellant and respondent here, and in all prior cases, agree that the driver is required to give an adequate breath sample. As the majority states:
An Intoxilizer test is comprised of “one adequate breath sample analysis, one calibration standard analysis, and a second, adequate breath sample analysis.” The legislature has provided that a test sample is deemed “adequate if the instrument analyzes the sample and does not indicate the sample is deficient.”
Quoting Minn.Stat. § 169.123, subd. 2b(a), (b) (1998).
There is nothing in the statute that requires drivers to give more than an adequate sample. There is nothing in the statute that authorizes the state to collect more than an adequate sample. In fact, the statute only authorizes the collection of an adequate sample. Somehow we have used the circular reasoning of Weierke and Brooks. In Weierke this court noted, “The governing statute dictates a minimum quantity for a sample but does not suggest that the sample may not be larger than the minimum.” Weierke, 578 N.W.2d at 816.
I strongly suggest that the Fifth Amendment prohibition against compelled self-incrimination in a criminal case dictates that once the minimum sample has been obtained, and the machine so tells the officer (see stipulated facts), the state has absolutely no right to force the defendant driver to continue to give more than the minimum, meaning more self-incriminating evidence. As in all criminal eases, penal statutes are construed strictly against the state and in favor of the defendant. See State v. Olson, 325 N.W.2d 13, 19 (Minn.1982) (holding penal statutes are strictly construed with all reasonable doubts resolved in favor of defendant).
The taking of an adequate breath sample is in the nature of compelled discovery under the Rules of Criminal Procedure. See Minn. R.Crim. P. 9.02, subd. 2 (stating court may order discovery any time before trial). If the district court orders a defendant fingerprinted, but does not order the taking of a sample of the defendant’s blood or hair, it would be impermissible for the state, after they obtain the authorized fingerprints, to insist that the defendant also give a blood and hair sample. The answer is simple. If the state wants that, they will have to go back to court for specific authorization. In this criminal ease, the state has authorization only for a minimum adequate sample. They had that. The officer knew that because the machine indicated that to him, yet he deliberately and intentionally did not stop the test but went on to collect more incriminating evidence. We know the additional evidence was incriminating because the stipulated facts are that Rader’s reported concentration continued to rise until he was told to stop blowing. We also have the stipulated fact that Rader’s reported value could have been a legal under .10 at the time he had given all that the law requires, meaning an adequate sample.
*327A constant argument of the state in these cases, whether civil or criminal, is that the officers are instructed to keep the driver blowing after an adequate sample has been recorded because “then we are more likely to get deep lung air and deep lung air is more accurate.”
There is no logic or due process to this argument. Of course, law enforcement would like every suspect being questioned to immediately give a complete statement and/or confession of everything they did. But “wants” do not translate into legal obligations. The state may “want” more breath after an adequate sample has been collected and registered, but they are not “entitled” to it under the law any more than police officers are entitled to keep defendants writing out confessions after a defendant has changed his mind and says he wants to discontinue his statement.
The Intoxilyzer 5000 could be programmed easily to turn off once an adequate sample has been collected, registered, and then print that reading out. Collection of any breath sample after the adequate sample has been given is compelled self-incrimination in violation of a citizen’s Fifth Amendment right.
The majority talks about how Rader’s test was prima facie reliable and that Rad-er failed to present any evidence that his test was unreliable. That is not the issue. A confession taken in violation of a defendant’s rights, for instance the right to a Miranda warning if questioned' while in custody, might be the most reliable confession ever written. It is just that it is inadmissible. To argue that an unconstitutional test is constitutional because it is “reliable” is a legal oxymoron. The majority states, “The state is required only to show that the directions of the legislature are followed.” I agree with the majority that the legislation should be looked at. The legislation requires the driver to blow “an adequate sample.” Nowhere does the legislation state that a driver is compelled to “blow more than an adequate sample.” That makes sense. “More than an adequate sample” is “void for vagueness” on its face. The phrase does not define “more.” The legislation does define adequate sample. In a criminal case, that is all a driver can be compelled to give.
On issue three, the Brady issue, a defense raised in this case, and the defense in other cases, has never been addressed head on. It is always bypassed. The Intoxilyzer 5000 could easily be programmed to print out the BAC at the moment the machine registers an adequate sample. We know from the stipulated facts here, and the facts in other cases, that there is a likelihood that drivers have registered less than a .10 with their adequate sample, but have “made the grade,” by continuing to blow for a few seconds longer because of the command of the testing officers to keep blowing until told to stop. A printout the moment the adequate sample is registered would be fair, and available evidence for both sides. If it were under .10, it would obviously be incul-patory. If it were more than .10, it could buttress the state’s case. The testing officer can position himself, if he wants, to know what the reading is at the moment the machine signals an adequate sample. The driver does not have that option. He is not told the signal and is not told to stop blowing when either the tone is heard or figures appear on the machine indicating an adequate sample. Just the opposite, the driver is ordered to continue blowing until the testing officer tells him to stop.
The present system is akin to investigating officers not taking statements from witnesses to a crime whose preliminary indication of what they observed seems to favor the defendant. By not taking the statement, the state avoids the rigid Brady requirement that inculpatory evidence be turned over to the defense. The state only takes the statements of witnesses whose preliminary indication is that what they observed favors the state. Then, of course, the state is willing to disclose those to defendant and his counsel.
*328I do not want to digress into the Brady issue, other than to point out that it is valid. The main thrust of my concurrence is that in a criminal case like this one, there is a serious flaw in our existing legal reasoning that allows the state to compel self-incriminating evidence from a defendant driver, under penalty of the severe sanction of the crime of test refusal, when the compelled self-incrimination exceeds the adequate sample set forth in the legislation.