dissenting. In State v. Madonna, 169 Vt. 98, 726 A.2d 498 (1999), we unanimously held that failure to advise a DUI suspect that his right to counsel included the right to speak to a public defender, regardless of his income, was a violation of the statutory right to consult counsel before taking a breath test. See 23 V.S.A. § 1202(c). The defendant in Madonna was not required to prove prejudice as a result of the misadvice, and we affirmed the dismissal of the civil suspension because incomplete advice had been given. Here, in a criminal prosecution, defendant sought to suppress his refusal to take a breath test on the grounds of the Madonna violation. *454The majority holds that the Madonna violation is meaningless unless defendant can show he was prejudiced by the violation. Because I believe this holding undervalues the statutory right to counsel in these circumstances, and gives police officers no incentive to give the statutorily mandated advice, I respectfully dissent.
The decision in Madonna relied on prior cases in which we have held that law enforcement officers in DUI stops play a critical role in the implementation of the statutory right to counsel. See Pfeil v. Rutland District Court, 147 Vt. 305, 309-10, 515 A.2d 1052, 1055-56 (1986) (lack of meaningful opportunity to consult with counsel prevents finding of voluntary refusal in civil proceedings); State v. Gracey, 140 Vt. 199, 201, 436 A.2d 741, 743 (1981) (form read to DUI suspect must state that a needy person can consult with an attorney at public expense); State v. Duff, 136 Vt. 537, 540, 394 A.2d 1145, 1146-47 (1978). As we noted in Duff, the only way the right is safeguarded is if the DUI suspect learns the extent of the right from the police officer during processing. 136 Vt. at 540, 394 A.2d at 1146. We have not required DUI suspects to discern this for themselves.
Moreover, for the reasons I stated in my dissenting opinion in State v. Hamm, 157 Vt. 666, 667, 599 A.2d 1048, 1049 (1991) (mem.), requiring defendants to prove that they would have made a different decision following consultation with counsel on refusal invites self-serving testimony that is not probative on the.issue of prejudice, and as defendant argues, is wholly inconsistent with an intelligent, informed waiver of rights. Therefore, I respectfully dissent.