(concurring in part/dissenting in part).
The advisory which is based on Minn. Stat. § 169.123, subd. 2(b) (Supp.1989) and which was read to McDonnell, Moser, Weeding, McCauley and Driver, is confusing and inaccurate to some degree for all drivers. However, I conclude it resulted in prejudice to only two: McCauley and Driver. It is upon this basis that I join with the majority in reversing the decisions in Mos-er, McDonnell, and Weeding and reinstating the license revocation of those drivers.
Moser had no prior revocations. Therefore, to the extent that the advisory indicated that she “may be subject to criminal sanctions” if she refused the test, it was inaccurate as to her. I agree, however, with the analysis of Judge Lansing to the extent that analysis is unable to discern any prejudice which befell Moser as a result of taking the test. Her license was revoked for 90 days because she took the test; it would have been revoked for one year if she had refused. Indeed, prejudice would very likely be present in a prosecution for DWI which arose out of a situation where the state obtained its evidence by threatening a criminal prosecution which could not occur under the statute, but, as Judge Lansing observes, that prosecution is not before us.
Despite my concern with the advisory, I am also unable to discern any prejudice which has befallen McDonnell and Weeding in the context of their license revocation proceedings; the only matters involving them that are before us. Notwithstanding the flawed and confusing nature of the advisory, McDonnell and Weeding were informed that refusal to test would result in a one-year suspension of their driving privileges. That is exactly the result appellant sought in the trial court and seeks here.1
I respectfully dissent from the majority’s reversal in McCauley and Driver and would affirm the trial courts’ dismissal of the gross misdemeanor refusal charges under Minn.Stat. § 169.121, subd. la (Supp. *3821989), on the grounds that the advisory based upon Minn.Stat. § 169.123 confused and prejudiced these two drivers.
Before addressing the confusing and prejudicial nature of the advisory given McCauley and Driver, however, I would express my agreement with the majority in several respects. First, certainly a concerned citizenry has the right and the duty to enact all reasonable measures to reduce the carnage which results from the presence on our roads of drivers who are under the influence of alcohol or drugs. I believe that the legislature reasonably may enact a statute making it a gross misdemeanor to refuse to submit to testing under the implied consent law. See South Dakota v. Neville, 459 U.S. 553, 565, 103 S.Ct. 916, 923, 74 L.Ed.2d 748 (1983) (“[The suspect’s] right to refuse the blood alcohol test * * * is simply a matter of grace bestowed by the South Dakota Legislature”); Nyflot v. Comm’r of Pub. Safety, 369 N.W.2d 512, 517 (Minn.1985) (“The legislature * * * could repeal the implied consent law and direct police officers to administer chemical tests against the suspect’s will”).
Second, I conclude, albeit somewhat reluctantly, no fifth amendment right to remain silent was violated as to McCauley and Driver. Even though the Minnesota Supreme Court in State v. Willis, 332 N.W.2d 180 (Minn.1983) declined to apply Neville, I believe it declined because Willis could be decided without resort to the rationale of Neville. Faced squarely with the question, I believe the Minnesota Supreme Court would declare the relevant aspects of State v. Andrews, 297 Minn. 260, 212 N.W.2d 863 (1973), cert. denied, 419 U.S. 881, 95 S.Ct. 146, 42 L.Ed.2d 121 (1974), no longer viable in view of Neville. By reaching the conclusion that Andrews is no longer good law, I am accepting, of course, the majority’s determination that the Minnesota Supreme Court would decline to interpret the Minnesota Constitution as affording greater protection to an accused under the fifth amendment than does the United States Constitution.
Under Neville, a refusal must be both compelled and testimonial before it violates an individual’s fifth amendment rights. Id., 459 U.S. at 559, 103 S.Ct. at 920. While I believe that the advisory as here constituted does logically compel a refusal, I accept the analysis that the refusal is not testimonial.2 See Friedman v. Comm’r of Pub. Safety, 455 N.W.2d 93, 97 (Minn.App.1990) (“[Rjefusal to take a test after being lawfully requested to do so is not an act coerced by the officer and is not protected by the federal privilege against self incrimination”) (emphasis added), pet. for rev. granted (Minn. July 6, 1990).3
Further, I accept the majority’s position regarding the sixth amendment. I conclude Nyflot is still good law because the sixth amendment right to counsel does not attach until judicial proceedings are commenced.4 See Nyflot, 369 N.W.2d at 515-16 (citing Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972) and United States v. Gouveia, 467 U.S. 180, 104 *383S.Ct. 2292, 81 L.Ed.2d 146 (1984) (other citations omitted)).
My departure from the majority opinion as to McCauley and Driver is compelled by my firm conviction, upon reading the implied consent advisory, that as to these two drivers due process rights under the fourteenth amendment were violated. Generally, due process “comprehends standards of conduct and procedure which accord with fundamental principles of fairness essential to the concept of justice.” State v. Wofford, 262 Minn. 112, 120, 114 N.W.2d 267, 273 (1962) (footnote omitted). Arguably, consistent with Neville and Ny-flot the state may be under no duty to provide any advisory to a driver in the circumstances of the drivers here. However, when the state deems it unnecessary to allow consultation with an attorney before deciding whether to take the test and when, instead, the state arrogates to itself the burden of advising a driver, I submit that the idea of fundamental fairness requires the state to give advice that is accurate, that is unambiguous, that is complete enough to meet constitutional requirements, and that avoids prejudice. See Prideaux v. State, 310 Minn. 405, 412, 247 N.W.2d 385, 390 (1976) (in dicta the supreme court stated that a driver may reasonably refuse a blood alcohol test “where the officer * * * confused the driver as to his rights”). See also the analysis of Chief Judge Wozniak wherein he finds a freestanding right to accurate information.
The statutory advisory given to a driver includes the following:
(2) that if testing is refused, the person may be subject to criminal penalties, and the person’s right to drive will be revoked for a minimum period of one year * * *;
(3) that if a test is taken and the results indicate that the person is under the influence of alcohol or a controlled substance, the person will be subject to criminal penalties and the person’s right to drive may be revoked for a minimum period of 90 days * * *;
Minn.Stat. § 169.123, subd. 2(b)(2)-(3) (emphasis added). Despite the efforts of the majority to interpret the language of paragraphs (2) and (3) in such a way as to redeem the statutory advisory from the fatal consequences of vagueness and confusion, I submit that it is vague and confusing in regard to prosecutions for refusal to test under Minn.Stat. § 169.121; unconstitutionally so. These two paragraphs describe and reference not one offense, but two: DWI and “refusal to test.” However, the advisory’s language does not make this clear. Hence, the driver is unaware that two separate offenses are involved.
Paragraph 2 addresses the criminal refusal statute and informs the driver that refusal may subject him or her to criminal penalties. That warning is wrong for some drivers and inadequate for others. For first-time DWI offenders, it is wrong regarding the refusal statute. First-time DWI offenders will most certainly be subject to the administrative penalty of losing their drivers’ licenses if they refuse to take the test. Under the existing statute, however, they cannot be subject to criminal penalties for refusing to test. The advisory clearly allows a contrary inference.5
The phrase “may be subject to criminal penalties” is a perilously flawed warning for drivers with the requisite prior revocations. They most certainly will be subject to criminal penalties if they refuse. McCauley and Driver were, in fact, charged with refusal to test. When drivers who have prior revocations hear that the consequence of refusal to test may invoke criminal penalties, and at almost the same moment hear that taking and failing the test will result in criminal penalties, they will logically conclude that the more prudent alternative is refusal because it offers an opportunity to escape criminal penalties. Especially if these drivers expect or suspect that a test taken will be a test failed, they will opt to refuse.
While the advisory as now constituted tells the driver that refusal to test will result in a one-year suspension of driving *384privileges, it gives the driver no indication that there is a risk of not one but two criminal prosecutions. There is no indication that for those with prior revocations the very act of refusing the test constitutes a gross misdemeanor offense. Thus, the failure to warn that refusal is a separate offense combined with the logical compulsion to refuse clearly prejudiced McCauley and Driver. Their decision not to test was based on inherently unclear but statutorily mandated “advice.” Where a police officer is required to read to a person, who may have violated one statute, an “advisory” which puts the suspect in jeopardy of violating another statute, that situation does not involve conduct or procedure which accords with “fundamental principles of fairness essential to the concept of justice.”
Further, refusal to test is, I submit, precisely the result which should be avoided, both as a public policy measure, and to avoid conflict with the clear rationale of Neville which indicates that compulsion to take the test is permissible. See Neville, 459 U.S. at 563, 103 S.Ct. at 922 (“Given, then, that the offer of taking a blood-alcohol test is clearly legitimate, the action becomes no less legitimate when the State offers a second option of refusing the test, with the attendant penalties for making that choice”) (emphasis in original). Because the present advisory logically compels a refusal, it not only violates due process of law, but is constitutionally impermissible under Neville.
Additionally, I note that initiation of a DWI prosecution does not require that a driver take and fail a breath test. See Minn.Stat. § 169.121, subd. 1(a). Therefore, refusal to test may be admitted as evidence in the DWI proceeding, as well as being introduced as “evidence” in a refusal prosecution. Thus, as written, the advisory’s logical compulsion to refuse the test exposes a driver to punishment for an offense which may not otherwise have been committed. The result is that the refusal enticed by the advisory is entered as evidence in the prosecution for the offense which the advisory was supposed to have been designed to prevent. This result is not only ironic, but also an inappropriate introduction of significant prejudice into subsequent proceedings.6
While certain pre-amendment cases cited by the majority and concurrences may have allegedly addressed some of the concerns voiced heretofore, I challenge their prece-dential value as they refer to McCauley and Driver.7 The advisory used in the cases before us is unique: a qualitative departure from any previous advisory. In one stroke the present advisory attempts to describe and refer to not one, but two, offenses. In State v. Frank, 365 N.W.2d 313 (Minn.App.1985), for instance, a case which both the majority and concurring opinions cite, it was appropriate to turn back a constitutional challenge on fourteenth amendment grounds. Id. at 314. The refusal to test in Frank was to be part of the evidence in a DWI prosecution; not in a prosecution for refusal to test. Id.; see also State v. Abe, 289 N.W.2d 158 (Minn.1980).
I do not trivialize the task before appellants in the event the trial courts in McCauley and Driver are affirmed. When *385queried at oral argument about the possibility of administratively revising the implied consent advisory to meet constitutional requirements, appellants unequivocally stated that administrative revision was not permitted. Therefore, a revision appears to require legislative action.8
Revision of the statutory advisory will not be an easy task. Nonetheless, to meet constitutional requirements, I believe drivers, if they are to be advised about anything at all, should be informed that they are risking two criminal proceedings: DWI and refusal to test. The officer need not ascertain whether a driver has a prior revocation. However, the officer must give enough information to permit a driver to know the consequence of refusing the test if he or she does, in fact, have a prior revocation. The officer must also give enough information to permit a driver to know that if this is the first DWI charge, license revocation consequences will be harsh if a test is refused, but there will be no criminal penalties for refusal. Inclusion of information of this breadth would remedy, I submit, the unconstitutionally vague and confusing nature of the present advisory as it applies to those charged under Minn.Stat. § 169.121. Appropriate amendment of the advisory would also result in placing the harsh consequences of test refusal upon those most deserving of them; upon those drivers who persist in continuing to drive while under the influence of alcohol or drugs after they have come through the judicial system on one or more previous occasions.
. I would, of course, subject criminal prosecutions brought against McDonnell and Weeding for refusal to test to the same analysis given the cases of Driver and McCauley in this dissent.
. Arguably, of course, even the Neville court might re-examine its holding that "refusal is not testimonial in nature” if it were presented with the facts of the criminal cases before this court. In Neville, the evidence of refusal was to be admitted in a case where the charge was DWI. Here, evidence of refusal will be admitted as "nontestimonial in nature" in cases involving a charge of "refusal to take a test.” Logic and credulity strain somewhat under application of the Neville “nontestimonial” fifth amendment rationale to cases where the suspect’s refusal is not entered as evidence of a separate crime but is, itself, the specific act for which the driver is being punished.
. The clarity of the amended refusal and advisory statute was not before the Friedman court as the amended statute was not then effective.
.One might appropriately question whether the rationale of Nyflot should extend beyond charges of DWI to charges of “refusal to test." The Nyflot court observed that
the right to counsel recognized in Miranda does not apply to the limited questioning of a driver to determine if he will consent to a chemical test. The Miranda right to counsel applies only to “interrogation,” which the Court has defined as express questioning or other words or actions by police reasonably likely to evoke an incriminating response.
Nyflot, 369 N.W.2d at 516 (emphasis added). Again, logic and credulity seem strained by a conclusion that refusal to test would not be an incriminating response when the crime charged was "refusal to test."
. As noted earlier, in Moser, the one case before us that falls into this category, because I find no prejudice, I agree with the majority that license revocation was proper.
. Few would dispute that prosecution of a DWI charge is made more difficult when no test results are available as evidence. While the rulings in Willis and especially Neville arguably ease that difficulty, all problems present in the DWI prosecution without a test disappear when a misdemeanor (or gross misdemeanor) DWI prosecution can be replaced by a gross misdemeanor "refusal to test” prosecution with criminal penalties at least as harsh as DWI and the same civil license revocation consequences. Arguments that the present advisory does not compel refusal must be evaluated in view of the advantages gained when the difficult DWI prosecution without a test can be bypassed and the "refusal to test” charge can be prosecuted instead.
. To the extent that Deering v. Brown, 839 F.2d 539 (9th Cir.1988), a test refusal criminal proceeding, may be persuasive, it is also distinguishable. In that case, "[t]he officer told Deer-ing that refusal to take the test constituted a criminal misdemeanor, and further warned Deering that if he did not respond, his silence would be deemed a refusal. Deering remained silent." Id. at 541. The defendant in Deering was given an explicit and unambiguous advisory which informed him that refusal to test was in and of itself a separate offense.
. During oral argument, appellants did not specifically cite any authority explicitly prohibiting the commissioner from administratively revising the advisory.