dissenting.
I respectfully dissent and would affirm all five trial courts which for varying reasons threw out the charges against the drivers. I agree with the dissent of Judge Huspeni to the extent that it affirmed the dismissals in the two criminal cases, McCauley and Driver. I agree fully with the dissent of Chief Judge Wozniak in his discussion of the 14th amendment due process issue relative to Moser. But I write separately as I cannot accept the reasoning in the dissents and majority that reverse the trial courts and reinstate the revocations in the civil implied consent cases involving McDonnell and Weeding.
After examining the facts of the five cases and the interplay between the civil aspect and the criminal aspect, I cannot *386separate the legal analysis as one could before when oral refusals and/or silence were charged out in a civil proceeding. The same implied consent advisory is read to all stopped motorists. No distinction is made between those who face the possibility of a criminal refusal and those who face the possibility of only civil penalties for refusal. With this new refusal crime, the state has so inextricably bound and overlapped civil and criminal refusals that I cannot accept any distinction for the purpose of analysis. I thus examine the trial courts’ rulings in favor of all five drivers in light of the constitutional guarantees that the other dissenters, along with myself, attach to the two defendants charged with the crime of refusing testing.
In examining the combined provisions of Minn.Stat. § 169.121, subd. la (Supp.1989) and the revised implied consent advisory, Minn.Stat. § 169.123, subd. 2(b) (Supp.1989) (which must be construed together in examining whether a crime has been committed), it is impossible, with honesty and logic, to carve out a civil implied consent refusal from a criminal implied consent refusal. All five cases before us have criminal overtones, and thus I examine each in light of the constitutional guarantees that must be applied when any charge is criminal.
I am in full accord with the other writers who discussed the fourteenth amendment due process issue and found the implied consent advisory at issue confusing, inappropriate, and as to most drivers, factually and legally inaccurate,1 We have an obligation to people who drive vehicles in this state to give them a reasonably clear-cut idea of what is permitted and what is not. The first law of communication is to identify the target group that is to receive the message. The target group here is not scholarly jurists and legal writers pouring over musty articles for publication, but is the basic Minnesota driver stopped on a dark street at 2:00 a.m. who has had three to six beers or two to three mixed drinks (or more), and who needs an honest, understandable advisory before being forced to choose between volunteering information which will be used against him or committing a crime.
Unless the trial courts in these five cases are affirmed, the civil implied consent procedure, which has built into it the specific denial of one’s right to consult with an attorney and the specific denial of a Miranda warning (whether or not you are in custody and subject to interrogation), will continue into the new law which makes refusing testing, in and of itself, an essential element of a crime under Minn.Stat. § 169.121, subd. la. The denial of the protection of a Miranda warning and the denial of an attorney is laid out in the implied consent advisory and Nyflot v. Commissioner of Public Safety, 369 N.W.2d 512 (Minn.1985). In Nyflot, police were advised not to give the Miranda warning and interrogate arrested drivers until after completing the implied consent portion of the investigation. When refusing to submit to testing was only a civil violation, the “camel” was already staggering under the load of reconciling the Bill of Rights with the gathering of evidence in civil implied consent for use in prosecutions of criminal DWI trials. With this new crime of refusal, I find the camel’s back is broken and the fifth amendment guarantee against compelled self-incrimination suffocating beneath a fallen animal. Since mere oral refusal (or just silence) is an essential element of criminal refusal, the conclusion is inescapable that a driver must have the full Miranda warning and its attendant right to an attorney before answering whenever he is the subject of such interrogation.2 *387Even while arguing against this conclusion, the state concedes it.
At oral argument, the Apple Valley City Attorney admitted that he recognized the constitutional problem with the refusal law at issue because making refusal a crime should require a Miranda warning before questions to a driver about his prior record (an essential element of criminal refusal) could be asked. The city attorney was responding to a direct question from the panel as to why the advisory could not be preceded by questions to the driver to ascertain if the driver was a “first timer” (which would mean refusal could only be civil) or a subsequent offender (which would mean the officer had a possible criminal suspect). The following questions and answers took place verbatim:
Q. On behalf of the Commissioner you appeared to concede that if an essential element of the crime were elicited, namely priors, in response to a direct question * * * a Miranda warning should precede it, weren’t those your exact words?
A. They were.
Q. That would be an, that since a person is under arrest, it would be better from a constitutional standpoint to give a Miranda warning if you get into the essential elements, correct?
A. Correct.
Q. Are there other elements to the crime such as refusing to take the test, is that an element of the crime:
A. Of course, yes. Refusing to take the test is an element of the crime
(emphasis added).
I analyze the fifth amendment issue as follows. The underpinning of civil implied consent procedure in Minnesota and other states is the Supreme Court case of Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). An examination of Schmerber, 384 U.S. at 763, 86 S.Ct. at 1831 shows clearly it was not some kind of breakthrough case which carved out a heretofore unknown exception to the fifth amendment, but was nothing more than a restatement of an old United States Supreme Court “present your body” case, Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021 (1910). In Holt, Justice Holmes said:
The prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to exhort communications from him, not an exclusion of his body as evidence when it may be material.
Id., (citing Holt, 218 U.S. at 252-53, 31 S.Ct. at 6) (emphasis added). That is what Holt and Schmerber said. That is all Holt and Schmerber said. Holt involved the question of whenever a defendant could be compelled to display a particular item of clothing in front of the jury. With common sense and logic, Justice Holmes pointed out that arguments to the contrary could only lead to the unacceptable conclusion that defendants could not even be compelled to sit in the courtroom for juries to look at and compare his looks to a photograph or other description supplied by the witnesses. Holt, 218 U.S. at 253, 31 S.Ct. at 6. Holt found that a defendant could be compelled to display himself to a jury without offending the fifth amendment. From Holt arose a line of cases allowing the state to escape the prohibition of the fifth amendment against compelled testimony when it only *388wanted to compel defendants to “present their body.” Defendants can be compelled to give fingerprints, handwriting samples, voice samples, hair samples, height and weight measurements, et cetera. Schmerber, 384 U.S. at 764 n. 8, 86 S.Ct. at 1832 n. 8. The majority in Schmerber (over strong and articulate dissents) allowed the forcible extraction and analysis of blood to pass the fifth amendment question on the same theory as Holt. Schmerber, like Holt was merely being required not to exclude his body from examination. But so as not to choke on their stretched and extended reasoning, the Schmerber majority carefully reiterated the principles enunciated by Justice Holmes in Holt regarding the fifth amendment forbidding the use of physical or moral compulsion to extort communication from defendants to use against them in criminal cases. Id. 384 U.S. at 763, 86 S.Ct. at 1831. The Schmerber court definitively and vigorously preserved the historic privilege against self-incrimination when what was wanted by the state was evidence of a testimonial or communicative nature.
History and a long line of authorities in lower courts have consistently limited its [fifth amendment] protection of situations in which the state seeks to submerge those values by obtaining the evidence against an accused through the cruel simple expedient of compelling it from his own mouth. * * * In some the privilege is fulfilled only when the person is guaranteed the right to remain silent unless he chooses to speak in the unfettered exercise of his own will. The leading case in this court is Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021.
Schmerber, 384 U.S. at 762-63, 86 S.Ct. at 1831 (emphasis added).
I submit that Schmerber stands foursquare against Minnesota’s refusal law be-
cause the communication of the refusal is the crime. Minnesota’s crime of refusal is not a “present your body” case. The essence of refusal is the communication from your own mouth of an assertion of a fact, namely that you will not take the test. This crime of refusal has nothing to do with the driver’s body.3
The crime we examine here rests on the communication by the driver of a refusal to take a test. End of report. This refusal crime has no relationship to Holt or Schmerber. Previous exceptions carved out for allowing the state, for instance, to compel handwriting or voice samples are situations where the “contents” of the samples were irrelevant. With handwriting, the state wants evidence of how a defendant writes, not what he writes. A defendant cannot be compelled to write a confession, but can be compelled to write “a quick red fox jumps over a lazy brown dog” so his handwriting can be analyzed. A defendant cannot be compelled to orally confess, but, for instance, can be compelled to recite that section of the Declaration of Independence4 wherein he is guaranteed life, liberty, and the pursuit of happiness, not because the authorites are interested in examining the contents of that wonderful document, but because they want to hear him talk out loud to examine characteristics of his voice. In the case at bar, the state does not care whether the drivers have a husky voice, lisp, or have a head cold. The state is interested only in the communication of the contents of the answer, i.e., yes or no. I submit this is precisely the act prohibited by the fifth amendment of the Bill of Rights as discussed in Holt and Schmerber.
Although state and federal courts agree that the incidents of drunken drivers is of grave concern, the recent addressing of *389this issue by the United States Supreme Court in Pennsylvania v. Muniz, — U.S. -, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990) is instructive, as it should put to rest any inference that the fifth amendment goes underground and takes a vacation when the crime is driving while intoxicated. In Muniz, a defendant suspected of the crime of driving while intoxicated had been arrested and booked. During the booking procedure, Muniz was asked questions concerning his name, address, height, weight, eye color, date of birth, and his current age. On these questions the majority found that, although he was in fact the subject of custodial interrogation, there was no need for a Miranda warning, nor was the attendant right of having an attorney present needed, as these were routine administrative booking questions. Routine booking inquiries serve as an exception to the strict rule that a full and complete Miranda warning must precede custodial interrogation before testimonial evidence can be obtained from and used against a defendant. However, Muniz was asked an eighth question, namely, the date of his sixth birthday. Muniz, an adult, had trouble with that answer. The majority in Muniz suppressed that answer on fifth amendment grounds with the reasoning that the testimonial nature of his hesitant and sloppy answer to a question that should have been answered easily would communicate to the factfinder evidence of an impaired mind, and evidence of an impaired mind is evidence of being under the influence, and being under the influence of alcohol is an essential element of the crime of driving while under the influence of alcohol.5
The Muniz court thoroughly discussed Schmerber; Doe v. United States, 487 U.S. 201, 108 S.Ct. 2341, 101 L.Ed.2d 184 (1987), (A testimonial communication is one which explicitly or implicitly relates a factual assertion or discloses information, and the vast majority of statements, oral or writ ten, will be testimonial and there will be few instances where , a statement will not convey information or assert facts); Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), (The fifth amendment protection against compelled self-incrimination includes formal and informal compulsion, and procedural safeguards are required even in custodial pretrial interrogations and interviews); United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973), (While the state may compel an accused to read a transcript aloud, it may be only for the purpose of obtaining a voice exemplar to measure the individual properties of the accused’s voice, and it may not be used for the testimonial content of the transcript); and other seminal cases. After a lengthy analysis, the Muniz majority determined that the fifth amendment to the Bill of Rights protected Muniz and surrounded him with the full panoply of the United States Constitution when he was asked “Do you know what the date was of your sixth birthday?” Muniz, — U.S. at-, 110 S.Ct. at 2649. The Muniz court explicitly reiterated the holdings of Schmerber and Holt that the fifth amendment privilege protects the accused from having to provide the state with evidence of a “testimonial or communicative nature.” The Muniz court held that in order to be testimonial, an accused’s “communication must explicitly or implicitly, relate a factual assertion or disclose information.” Muniz, — U.S. at -, 110 S.Ct. at 2643 (emphasis added).
It would raise naivete to an art form to argue that when a driver in Minnesota is asked whether he or she will submit to a *390test that the answer “no” is neither a factual assertion nor the disclosure of information. The Muniz court went on to carefully distinguish (and thus allow in as evidence) the “slurred nature” of Muniz’s answer, likening it to a forced voice exemplar for tonal quality, but found that Muniz’s oral communication of the wrong date was over the line and thus entitled to fifth amendment protection. That protection not being present necessitated suppression of “the birthday answer.” The Supreme Court found Muniz’s incorrect answer to the question incriminating not because of the tonal quality of his voice but because of the communication and testimonial inference which could be drawn from his answer. See Muniz, — U.S. at-, 110 S.Ct. at 2645-47.
The Minnesota refusal law cannot be distinguished. The state is not looking for the physical properties of the driver’s oral answer as in Dionisio, but is only concerned with the inferential content of the driver’s answer, i.e., is it a yes or a no.
In Muniz, the United States Supreme Court clothed a driver suspected of operating a vehicle under the influence with the Bill of Rights, including the requirement of a Miranda warning and the presence of an attorney, if he chose, to answer the hardly life-threatening question of what was the date of his sixth birthday. The futility of attempting to distinguish our refusal law from Muniz is shown by the fact that Minnesota’s refusal law is far more direct, and thus, under the reasoning of Muniz, even more subject to being struck down. No one argued in Muniz that by failing to give the correct answer to his birthday question Muniz broke any law. In fact, there is not even a guarantee that in a later trial for the crime of drunk driving the jury would even find his stumbling over the answer to be of any evidentiary consequence. A jury could give it some weight, but would not have to give it any weight. In other words, just on the bare possibility (a pure speculation in effect) that a jury might find the contents of Muniz’s answer about his sixth birthday to be communicative and testimonial that might aid in finding him guilty of DWI was enough for the United States Supreme Court to call that question one subject to the mandates of the fifth amendment and a Miranda warning.
Now, contrast Minnesota’s law of criminal refusal wherein the answer “no” itself is part of a crime, alongside the innocuous question asked Muniz, and try to argue that Minnesota’s refusal law is exempt from fifth amendment prohibitions spelled out in Muniz. If we were to stop the average Minnesota resident on the street to inform him that the Constitution of the United States protects his right not to guess at the date of his sixth birthday without a Miranda warning and the aid of an attorney but does not protect his having to answer a direct question from the authorities wherein a negative answer (or silence) is a crime in and of itself, will likely lead that citizen to pick up a rock, walk to a courthouse, and throw the rock at it believing he “need not suffer fools.” I submit we cannot argue a distinction between Muniz’s rights and a Minnesota driver’s rights with a straight face and keep faith with our citizens.
It is interesting to note that even before the present refusal law, and back when all implied consent was civil, Minnesota held that the admission into evidence of a driver’s refusal to submit to testing in a criminal prosecution violated the privilege against compelled self-incrimination pursuant to the federal fifth amendment and the Minnesota Constitution Article I, Section 7. 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). Since that time the Minnesota Supreme Court, with repeated opportunities to do so, has studiously avoided overruling State v. Andrews. It is good law today.
In State v. Willis, 332 N.W.2d 180 (Minn.1983), the Minnesota Supreme Court deliberately allowed Andrews to remain even though three members of the court in a concurring opinion would have overruled Andrews based on South Dakota v. Ne-ville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983). I would note that recently the Minnesota Constitution was again interpreted to give more rights than *391the United States Constitution.6 Minnesota, like all states, is only prevented from giving less.
In examining this criminal refusal law, we do not need to follow Neville as it does not control the issue. Neville only discussed the use of one’s refusal in a criminal case when that refusal was gathered as evidence in a civil case. Neville did not in any way approach the precise question before us, which is, what does the fifth amendment say and what does it prohibit when the refusal itself is the crime.
This new crime of refusal presents another problem unique in Minnesota and not touched on in any way in Sehmerber and Neville. That is what I call the “Nord-strom issue.” In State v. Nordstrom, 331 N.W.2d 901 (Minn.1983), the Minnesota Supreme Court held:
Absent [a] valid waiver on the record of a defendant’s right to counsel, the misdemeanor DWI conviction based on an un-counseled plea of guilty cannot be used as the basis of a gross misdemeanor charge.
Nordstrom, 331 N.W.2d at 905. For some time now, Minnesota has had a law allowing the enhancement of your basic misdemeanor DWI into a gross misdemeanor if it is “two in five or three in ten.” Minn.Stat. § 169.121, subd. 3a (1989). What the Nordstrom court said in essence was, although you had a prior misdemeanor on your record, that prior misdemeanor could not be used to enhance a second misdemeanor into a gross misdemeanor unless the record showed that the conviction for the first misdemeanor was based on a scrupulous adherence to the right to counsel. The Nordstrom court called for this scrupulous adherence even though Nordstrom was in a setting where the threshold, the first violation, was a crime, not a civil violation, and thus presumably constitutional safeguards were present at that first violation.
There can be no such presumption with our criminal refusal statute that constitutional safeguards were scrupulously adhered to in the threshold proceeding because the threshold proceeding could be a prior civil revocation. Civil revocations are found in a proceeding without the constitutional guarantees of a jury trial, an attorney, the presumption of innocence, and the state’s burden is a mere preponderance of the evidence rather than proof beyond a reasonable doubt. If the Minnesota Supreme Court was so concerned in Nord-strom about constitutional rights that you could not enhance, even when based on a prior crime of record, unless, in addition to that crime being of record, there was explicit in the record evidence that the right to counsel has been protected, what do we do with the concept of enhancing into a gross misdemeanor a prior civil implied consent violation which, by definition, is not surrounded with the constitutional guarantees afforded Nordstrom when he had his first DWI? I do not rest my analysis in this dissent on the Nordstrom issue, but only mention it to emphasize the extraordinary care and concern Minnesota has for the protection of its citizens’ rights.
I note the majority mentions the public policy argument of liberal interpretation citing Szczech v. Comm’r. of Public Safety, 343 N.W.2d 305 (Minn.App.1984) and State, Dep’t of Public Safety v. Juncewski, 308 N.W.2d 316 (Minn.1981). I do not disagree that the words used in Szczech and Juncewski are what the majority say they are, but I disagree with the majority’s position that they are relevant. I read in Szczech and Juncewski (whether the violation was civil implied consent or the use of such evidence in a DWI prosecution) the implicit statement that in civil implied consent proceedings the statutes are remedial and should be given a broad effect. I cannot accept any inference that the liberal *392interpretation in civil revocation cases can apply to the crime of refusal or, for that matter, any other crime.
Minnesota, when it comes to the interpretation of criminal statutes, construes criminal statutes strictly against the state and in favor of the accused. State v. Soto, 378 N.W.2d 625, 627-28 (Minn.1985). I know of no exceptions to this rule ever carved out, for instance, for murder, sexual assault, or robbery, all serious felonies. I submit a close examination of the law will show that none has been carved out for traffic offenses. The disagreement I have with the majority over the interpretation to be given cases that discuss interpreting driving laws underscores the problem created here when civil implied consent refusal is now elevated to an unholy alliance with criminal refusal. Laws are not supposed to be “a trap for the unwary.” Refusal as a crime, and its attendant implied consent advisory, are not just a trap for the unwary motorist, they are a morass for the bench and bar.
Lastly, I note that not only do I find the duo of Minn.Stat. §§ 169.121, subd. la and 169.123, subd. 2(b) in combination thereof unconstitutional, I find, worst of all, that they are of no use for the legitimate purpose for which they were intended, meaning the lessening of the incidents of impaired driving. We are, at heart, a bottom line nation. If there were any indicia that changing civil implied consent to criminal implied consent and enhancing the already severe penalties would do any good, I suspect winking at the fifth amendment might be easier. However, I know of no study that indicates or even begins to imply that drivers in Minnesota thought the previous combination of misdemeanor DWI, gross misdemeanor DWI, and civil implied consent with the attached expenditures of thousands of dollars for legal fees and increased insurance costs, the possibility of days to several months in jail, and the possibility of hundreds of dollars in fines was a “piece of cake.” Now that we have yet another gross misdemeanor on the books, why do we assume that repeat offenders will get religion, vow to amend their ways, and now, for the first time, take seriously laws against driving while intoxicated?
Not only do I find violations of the fifth, sixth, and fourteenth amendments to the Constitution, I suggest it is all for naught as the state now imposes on itself a higher burden to get convictions. When refusal to test, whether for the first, second, or third time, was civil, the burden of proof by the state was a preponderance of the evidence. There was no right to a jury trial, and the problems of proof for the state were few and avenues of defense for drivers were fewer. Now, when refusals are prosecuted as a crime, the drivers will be entitled a trial by jury, will be clothed with a presumption of innocence, the right to counsel will be enforced, and the state will be held to the highest burden of proof we have, proof beyond a reasonable doubt.
Leave implied consent refusals a civil matter. As a civil proceeding, they are workable and enforceable. I submit that as a separate crime, refusals are neither. I suggest the logical place to attack the problem of driving while intoxicated is at the source, namely, separate the drinker from his/her car. -No driver has a constitutional right to drive impaired, not even to a slight degree. Yet, once you drive impaired, are lawfully arrested and lawfully charged with a crime, then the array of federal and state constitutional rights for the accused is set in motion. These guarantees, in all cases, to some degree, impede prosecution, and in some cases prevent a successful one. Better to attack the problem by separating drunken drivers from their vehicles rather than sitting back until there has been an arrest and a criminal complaint, and then attempt to carve out exceptions to the Bill of Rights because of “carnage on the highways” caused by drunks. Carnage on the highways, and all other crimes, are subservient to the carnage at Valley Forge, Yorktown, and Gettysburg where the civil liberties now hang*393ing in the balance were carefully shaped and hammered into rights so clean and so pure that they stand the test of time and resist encroachment.
I dissent and would affirm the trial courts across the board on these five cases.
. When the several thousand stops made annually in the State of Minnesota are examined, it is clear that Moser, by far, represents the average driver stopped. Although chronic drinking drivers do a disproportionate share of damage, it still remains that only a small percentage of drivers stopped will have on their record the necessary priors so that their refusal is not civil but criminal. Thus, I support Chief Judge Wozniak’s vigorous and cogent argument and point out that the problem he addresses will be present, not just in isolated cases, but in virtually all.
. While noncustodial interrogation does not trigger the right to a Miranda warning, the fact of custody or not does not impact on the fifth amendment prohibition against compelled testimony. That constitutional guarantee exists in all citizens at all times, not just when in custo*387dy. Thus, for fifth amendment purposes, we need not distinguish the roadside stops where the interrogation is to a driver not in custody from those stops where arrest and custody take place before interrogation begins. The question of custody only triggers the necessity for a Miranda warning. The necessity to respect the fifth amendment is always present. Also, the fifth amendment defect of the refusal as crime statute can not be cured by requiring a Miranda warning be given prior to the implied consent advisory. Making the act of refusal (or the exercise of the right to remain silent) a crime makes the long treasured right to remain silent an illusory one. Even with the procedural warning of Miranda given and even if an attorney is available, the driver has no real choice. If he waives the right he provides evidence against himself, and if he invokes his right to silence the statute makes this exercise of constitutional protection a crime. Minn.Stat. § 169.121, subd. la is so contrary to the guarantees of the fifth amendment it is fundamentally flawed.
. Should the driver refuse to take a test, yet subsequently change his mind and submit his body for a breath, blood, or urine sample, it would be totally irrelevant and nonprobative on the crime of refusal. In my opinion, under the refusal statute, it would not even have to be considered by the court as a mitigating circumstance when it came time to pronounce sentence.
. We hold these truths to be self evident that all men are created equal, that they are endowed by their creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.
. It was not the fact of when Muniz’s sixth birthday was but the incriminating inference which could be drawn from the contents of his speech in attempting to answer the question which fell under the protection against compelled self-incrimination. This is precisely the nature of the case at bar. By making the refusal of testing criminal, the refusal being an essential element of the crime, applying the Supreme Court’s Muniz analysis make a refusal (or silence) tantamount to testimony. Further, I adopt Judge Huspeni’s analysis in her dissent which shows the statute compels a refusal. The majority relies on Deering v. Brown, 839 F.2d 539, 541-542 (9th Cir.1988) to find a refusal would not be testimonial. In light of the United States Supreme Court’s thorough analysis in Muniz, a later case than Deering, I find Muniz persuasive and controlling.
. In short, we interpret the Minnesota Constitution as requiring a more stringent burden on the state in our opinion and grants far more protection of religious freedom than the broad language of the United States Constitution. Pursuant to this analysis, we conclude that the state has failed to sustain its burden in demonstrating a sufficiently compelling interest.
State of Minnesota v. French, 460 N.W.2d 2 (Minn.1990).