(concurring specially).
I concur in the conclusion that we must correct reversible error in all five cases being reviewed. This holding is compelled by the precedents stated in the majority opinion. It is our only prerogative as an intermediate appellate court to follow these authorities.
The various opinions now expressed by this court prompt additional comment on the law of the case.
In my opinion, the result here is shaped inescapably by holdings of the United States Supreme Court in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983) and Pennsylvania v. Muniz, — U.S.-, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990), and application of these decisions by the Minnesota Supreme Court in Nyflot v. Commissioner of Public Safety, 369 N.W.2d 512 (Minn.1985), appeal dismissed, 474 U.S. 1027, 106 S.Ct. 586,. 88 L.Ed.2d 567 (1985). Neville and Nyflot are especially critical for our analysis. The holdings in these cases are wrongfully disregarded in proposals to correct the legislative actions being reviewed. To demonstrate this point, these five observations are added:
1. Given the controlling law, there is no merit in the plea of respondent Moser. Indisputably, the Minnesota Legislature has authority to give or to take away freedom of a driver to refuse and it has also created the impairments of that freedom which are now criticized. It has to be remembered, however, that criticism of steps to impair the right is also aimed at a legislative enactment. The content of the implied consent advisory is not chosen by an official or an agency, but by the legislature itself. See Minn.Stat. § 169.123, subd. 2(b) (Supp. 1989).
*377As vigorously asserted by respondent Moser, a driver’s interest in refusal may be frustrated by the form of the advisory. Indeed, the advisory seems senseless; it warns many drivers of a danger they don’t face — the risk of conviction for the act of refusal. Nevertheless, this effect of the advisory represents the will of the legislature. They could, if they wished, further restrict the right of refusal. Under Schmerber, no basis exists for a judicial effort to enlarge the right of refusal.
Moser is a civil proceeding. Schmerber goes further, however, declaring the law governing collection of evidence for criminal cases.
2. The Schmerber court refused to recognize that fifth amendment rights are implicated when a driver consents to chemical testing. Schmerber, 384 U.S. at 761-65, 86 S.Ct. at 1830-33. The Neville court took the next step, refusing to recognize a fifth amendment right to refuse testing. Ne-ville, 459 U.S. at 561-65, 103 S.Ct. at 921-23. According to the Neville court, because the choice to refuse is not an act coerced by a police officer, it is not protected by the privilege against self-incrimination. Id. We have no freedom to avoid the Neville rationale.
It is contended that establishing a crime of refusal is significantly more serious than the Neville court’s allowance of the proof of refusal as evidence of a drinking offense. These two effects of refusal are different, but the difference is not germane to the rationale of Neville. Regardless of the consequence of refusal, Neville establishes that the act of refusal is not coerced when the driver is given an option through a lawful request for consent to testing.
3. Neville also goes further, lending support for courts that have viewed the act of refusal as nontestimonial, and thus beyond the scope of the fifth amendment. Id. 459 U.S. at 560-61, 103 S.Ct. at 920-21. We have found no basis to declare otherwise.
It is contended that the words “I refuse” are incriminating testimony-in a prosecution for a refusal to submit to a test. The significance of refusal, however, lies in the act and not in the words. Id. This is the rule on admitting refusal evidence in a DWI prosecution, and no reason has been identified for distinguishing the use of refusal evidence in a prosecution for refusing a test.
4. The respondents’ fifth amendment rationale involves still a third obstacle. Following the holding in Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297 (1980), the Neville court observed that the statement of choices in an implied consent advisory is not a form of interrogation. Id. 459 U.S. at 564 n. 15, 103 S.Ct. at 923 n. 15. This approach was specifically adopted by the Minnesota Supreme Court in Nyflot. Ny-flot, 369 N.W.2d at 516.
5. The several implications of Schmerber and Neville remain undisturbed as a matter of federal law. Most recently, in an opinion authored by Justice Brennan, the fifth amendment rationale of these cases was enunciated again. Muniz, — U.S. at -, 110 S.Ct. at 2643-52. The court found the entire implied consent advisory outside the realm of fifth amendment protections, except for an extraneous effort of the advising police officer to verbally test the driver’s sobriety. Id. at-, 110 S.Ct. at 2645-49.
6. The most telling challenge to the current scheme of implied consent law is stated in terms of fourteenth amendment due process. The judiciary should be urgently concerned about the clarity of an advisory where the resulting conduct of the driver may constitute a crime and where the advisory and the driver’s conduct occur while the driver is in a police officer’s custody and has no access to counsel. Important public policy considerations support modification of the advisory to specifically indicate that the refusal constitutes a criminal act. Nevertheless, the legislators are the policymakers, and existing fourteenth amendment law gives this court no freedom to interfere.
Precedent on this issue is almost completely limited to the Neville decision. The Neville court concluded it was not “fundamentally unfair” to use the act of refusal *378as evidence of criminal fault. Id. at 565, 103 S.Ct. at 923. The Neville driver was confronted with a request for a test to determine blood alcohol concentration and was told that refusal could lead to the loss of driving privileges. The warning on loss of license “made it clear,” thought the Supreme Court, “that refusing the test was not a ‘safe harbor’ free of adverse consequences.” Id. at 566, 103 S.Ct. at 924. The court reached this conclusion even though the driver was not specifically warned that refusal evidence might be used against him in a DWI prosecution. In the cases before us, the drivers were also warned about license revocation. Making the harbor of refusal appear even less safe, the current advisory says that “if testing is refused, the person may be subject to criminal penalties.” Minn.Stat. § 169.123, subd. 2(b)(2) (Supp.1989).
One respondent contends that the realistic effect of the present advisory is to compel refusal because the criminal consequences of a failed test are made clear and because the existence of a separate crime of refusal is not sufficiently announced. Thus, respondent implies that the Neville rationale does not govern the facts surrounding use of this advisory. This argument disregards the warnings of the advisory about refusal. Moreover, it only speculates as to the meaning of the advisory for the average driver, and it poses a meaning which is defied by the records before us. The advisory contains warnings about refusal, both as to possible revocation and possible criminal penalties. Furthermore, it is difficult to imagine any driver failing to perceive that the advisory is a process employed as part of a police effort to obtain a chemical test. Importantly, none of the drivers in the case before us has offered evidence that they believed the advisory compelled a refusal.
It is significant to look with care at the position of respondent Moser, and her extensive arguments that she was unduly misled by the present advisory. Moser pleaded specifically that the advisory compelled her to give a test and that it unduly frightened her regarding the consequences of refusal. This evidence leaves little room for the argument that the advisory invites refusal as a matter of fact.
The several opinions here prompt two additional observations:
1. We know, of course, that the issues here involve tension between the vital policy interests of public safety and personal liberty. While it is the prerogative of an intermediate appellate court to offer its opinions on these policy considerations, the exercise seems meaningless in the circumstances here; the supreme courts of this state and of the nation have deliberated on these matters and rendered controlling decisions. Thus, I make no statement about liberty rationales that have been defeated by controlling high court decisions. Similarly, I do not join in the opinion that our decision here rests on this court’s preference for public safety interests.
2. I also elect against stating any opinion for or against identifying sufficient liberty interests under the Minnesota Constitution that might contradict federal law on these important issues. Ultimate authority clearly rests with the supreme court of the state to declare state constitutional law in conflict with federal law. State v. Fuller, 374 N.W.2d 722, 726 (Minn.1985). Moreover, to a large extent the Minnesota Supreme Court has already spoken on the question; the majority in Nyflot gives no heed to the dissent’s arguments on the state constitutional principles. In addition, an array of pertinent constitutional questions is already before the supreme court in Friedman v. Commissioner of Public Safely, 455 N.W.2d 93 (Minn.App.1990), pet. for rev. granted (Minn. July 6, 1990).