(concurring in part/dissenting in part).
I concur with the majority result as to McDonnell and Weeding. I concur with Judge Huspeni’s dissent as to Driver and McCauley. I respectfully dissent as to Moser.
Cindy Moser was read an advisory which, as to her, was an incorrect statement of the law. The majority and concurring opinions suggest the advisory’s inaccurate state*379ment did not prejudice Moser in the end result because she took the breath test. This analysis ignores the unconstitutional and fundamentally unfair coercion Moser suffered at the time the advisory was read. Therefore, I respectfully dissent from the majority’s decision to reinstate the revocation of her driver’s license.
I.
A state may force suspected drunk drivers to submit to testing. South Dakota v. Neville, 459 U.S. 553, 558, 103 S.Ct. 916, 920, 74 L.Ed.2d 748 (1983). However, the Minnesota legislature has given drivers the option to refuse consent. Nyflot v. Comm’r of Public Safety, 369 N.W.2d 512, 517 (Minn.1985), appeal dismissed, 474 U.S. 1027, 106 S.Ct. 586, 88 L.Ed.2d 567 (1985); Thornton v. Comm’r of Public Safety, 384 N.W.2d 606, 608 (Minn.App.1986). Although a driver does not have a “right” to refuse testing, a driver can elect to refuse if the driver accepts the consequences of the decision. State v. DeGier, 387 N.W.2d 227, 229 (Minn.App.1986).
Whether to submit to testing is an important decision with civil and criminal consequences. Connor v. Comm’r of Public Safety, 386 N.W.2d 242, 245 (Minn.App. 1986). It is “the kind of decision for which the advice of counsel arguably could be useful." Nyflot, 369 N.W.2d at 517.
Instead of allowing DWI suspects access to counsel, the Minnesota legislature has appointed itself their advisor. A prerequisite to license revocation under the implied consent law is compliance with its mandate that an advisory be read to the driver. Tyler v. Comm’r of Public Safety, 368 N.W.2d 275, 280 (Minn.1985). The advisory is designed to inform a driver of his or her rights and obligations under the implied consent law. Id.; Golinvaux v. Comm’r of Public Safety, 403 N.W.2d 916, 919 (Minn.App.1987). The advisory tells the driver that he or she has a choice between refusing or submitting to testing and describes the consequences of either option. Minn.Stat. § 169.123, subd. 2(b) (Supp.1989). The legislature has. included the issue whether the driver was properly informed as among those for judicial review of the revocation decision. Minn.Stat. § 169.123, subd. 6(2) (Supp.1989); See Dehn v. Comm’r of Public Safety, 394 N.W.2d 272, 273-74 (Minn.App.1986). Faced with the important decision whether to submit to testing, the driver must be accurately informed.
Minnesota courts have previously examined claims that the implied consent advisory misleads drivers who are requested to test under the implied consent law. See, e.g., State v. Abe, 289 N.W.2d 158 (Minn.1980); State v. Frank, 365 N.W.2d 313 (Minn.App.1985). We have also examined claims that information given in addition to or instead of that contained in the advisory was misleading. See, e.g., Connor, 386 N.W.2d at 242.
In addressing these types of claims, we have examined whether the information given was an accurate statement of the law. See Gunderson v. Comm’r of Public Safety, 351 N.W.2d 6, 7 (Minn.1984); State, Department of Public Safety v. Early, 310 Minn. 428, 247 N.W.2d 402 (1976); State, Department of Public Safety v. Lauzon, 302 Minn. 276, 224 N.W.2d 156 (Minn.1974); State, Department of Public Safety v. Nystrom, 299 Minn. 224, 217 N.W.2d 201 (Minn.1974); Golinvaux, 403 N.W.2d at 916; DeGier, 387 N.W.2d at 229; Hallock v. Comm’r of Public Safety, 372 N.W.2d 82 (Minn.App.1985); Holtz v. Comm’r of Public Safety, 340 N.W.2d 363 (Minn.App.1983). Underlying these decisions is the assumption that, at a minimum, the information given a driver must be accurate.
Connor, on which the trial court relied in rescinding Moser’s license revocation, is a fitting example of our prior analysis. The driver claimed the information given her was so misleading as to require her license revocation be rescinded despite the fact that she took, rather than refused, the test. Connor, 386 N.W.2d at 244. Her argument was properly before the court under section 169.123, subd. 6(2). However, we reinstated the revocation after determining whether the information given her in addition to the advisory was a misstatement of the law. Id. at 245. We found the infor*380mation was not misleading or confusing. Id. at 245-46.
Thus, the implied consent statute, and our case law, have made proper advice to a driver necessary to proper application of the implied consent law.
Minn.Stat. § 169.121, subd. 1(a) (Supp. 1989), provides it is a crime to refuse testing if the driver’s license has been revoked once within the past five years, or two or more times within the past ten years. Mos-er’s license had never been revoked before the incident giving rise to this appeal. Moser was not, and could not be subject to criminal penalties for refusing to test. However, the state certainly misled Mos-er. In the guise of advising Moser about the consequences of refusal, the police incorrectly told her she could be subject to criminal penalties.
II.
In Minnesota, a driver is deemed to have consented to testing for intoxication under Minn.Stat. § 169.123, subd. 2(a) (Supp.1989). State, Department of Public Safety v. Wiehle, 287 N.W.2d 416, 418 (Minn.1979).
Implied consent does not obviate analysis of whether Moser was correctly advised when she decided to be tested. Only when a driver lacks the capacity to revoke consent is implied consent deemed continuous and informed choice irrelevant. Villeneuve v. Comm’r of Public Safety, 417 N.W.2d 304, 306-08 (Minn.App.1988); Thornton, 384 N.W.2d at 607-08; Douglas v. Comm’r of Public Safety, 385 N.W.2d 850, 852-54 (Minn.App.1986), pet. for rev. denied (Minn. June 19, 1986). Compare Rude v. Comm’r of Public Safety, 347 N.W.2d 77, 80 (Minn.App.1984). As long as capacity to revoke consent exists, our laws require that the driver be informed of the consequences and be given the opportunity for doing so.
The state cannot give a driver the choice of taking or refusing the test, appoint itself advisor as to the consequences of refusing, and then supply misinformation about those consequences.
III.
Fundamental fairness is the quintessence of the due process clause. While Moser did not label her argument below a due process challenge to the implied consent law, due process of law is the essence of her claim and the trial court’s decision. See Raley v. Ohio, 360 U.S. 423, 436, 79 S.Ct. 1257, 1265, 3 L.Ed.2d 1344 (1959).
The due process requirement of the fourteenth amendment is a right; it does not operate solely to protect other recognized rights. An individual has the right to due process of law when loss of life, liberty, or property is threatened by the state.
A State may not issue commands to its citizens, under criminal sanctions, in language so vague and undefined as to afford no fair warning of what conduct might transgress them. * * * Inexplicably contradictory commands in statutes ordaining criminal penalties have, in the same fashion, judicially been denied the force of criminal sanctions. * * * Here there were more than commands simply vague or even contradictory. There was active misleading.
Raley, 360 U.S. at 438, 79 S.Ct. at 1266 (citations omitted).
More offensive than statutes found void for being so vague as to afford no fair warning of what conduct violates them, the implied consent advisory actively misleads the driver with no prior license revocation.
Moser was misled into making the preferred choice of testing by the state’s provision of inaccurate information as to the consequences of not testing. This process of actively misleading first time offenders into thinking they are subject to criminal penalties if they refuse testing is patently unfair. Moser’s license revocation should therefore be overturned.
The majority appears to have confused Moser’s claim with an entrapment defense raised under the due process clause of the fifth amendment. Compare Hampton v. United States, 425 U.S. 484, 490, 96 S.Ct. 1646, 1650, 48 L.Ed.2d 113 (1976) (government activity must violate a protected right of the defendant to establish entrapment *381defense), with Grayned v. Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222 (1972). Moser only asks us whether, after deciding to inform drivers of the consequences of refusing to test, the state is permitted to provide legally inaccurate information.
The words “trap” and “entrapment” are used under the void-for-vagueness doctrine to describe the evil of convicting a person for conduct which was not clearly unlawful or which the state actively represented as lawful. Raley, 360 U.S. at 438, 79 S.Ct. at 1266. Thus, when refusing to sustain a conviction for exercising a privilege the state had clearly said was available, the Supreme Court stated to do otherwise “would be to sanction the most indefensible sort of entrapment by the State.” Id.
Although Moser’s revocation was shorter than the revocation for refusal, the judiciary must address the wrongs inflicted upon her by the state. The majority would seemingly affirm any advisory regardless of its coercive and inaccurate content. I cannot agree. Admittedly, the state has a valid interest in promoting the use of alcohol testing. However, a socially imperative result cannot shield a constitutionally defective process. First time offenders actively misled by the state while making this important decision are prejudicially coerced and must have standing to seek redress.
This decision does not promote lax enforcement of our drunk driving laws. It affirms the ideal of fundamental fairness embodied in our state and federal constitutions. In recent years, society has keenly focused its attention on the seriousness of drunk driving offenses. Laws passed to make convictions and license revocations easier to obtain should not subvert fairness for the sake of expediency. We must not, in service to this or any popular cause, allow government to trample the rights of individual citizens. The end does not justify the means.
NORTON, J., joins in the dissent of WOZNIAK, C.J.