(temporarily assigned), concurring.
The majority concludes that defendant “unequivocally” and unconditionally consented to give a breath test and that the additional warning required by N.J.S.A. 39:4-50.2(e) did not have to be read to him in order to sustain his conviction for refusal to provide a breath sample. See N.J.S.A. 39:4-50.2(a); 39:4-50.4(a). I believe that, even when defendant unequivocally and unconditionally consented to give an adequate breath sample at the outset, once his efforts proved to be insufficient, he had to be further advised about his obligation to provide an adequate sample and the consequences of not doing so. Because defendant was sufficiently advised in this case, I concur in the judgment.
The case was presented to the municipal court on a stipulated record. The parties stipulated that the police report, the standard statement to be read under N.J.S.A. 39:4-50.2, and the “Alcohol Influence Report Form” for an Acotest 7110 MKIII-C machine should be admitted into evidence. As a result, the parties agreed there was probable cause to arrest defendant for driving while intoxicated, N.J.S.A. 39:4-50, and that defendant made three attempts to blow into the Acotest and give two breath samples. He provided samples of 0.0 liters over 0.3 seconds, 1.2 liters over 4.9 seconds, and 1.2 liters over 3.3 seconds. On each occasion the machine recorded “min. vol. not achieved.” The municipal court concluded that the facts did not call for the reading of the additional statement, and found defendant guilty of refusal.1
*90At the trial de novo, the Law Division found that “the defendant unequivocally said he would take the test [s]o there’s nothing equivocal or conditional or ambiguous about his reply.” The judge found defendant guilty of “refusal” because the officer told defendant that his breath sample was not sufficient, and “that if he didn’t provide a proper one it would be deemed a refusal.” In its written opinion, the Law Division concluded:
the defendant did knowingly refuse to provide a proper sample and that this has been established beyond a reasonable doubt. On two tries it is uncontested that the Defendant did not reach 1.5 liters. The officer warned him that if this result was not satisfactory he would be charged with refusing. He was instructed again and administered the test. The third test resulted in the minimum volume again not being achieved. The Court does not find that the State must continue to allow the defendant to try until the maximum number of eleven attempts before the defendant can be found guilty of refusal. It was clear here that the defendant was properly instructed and failed to supply the minimal breath sample required for the machine to produce a reading.
In State v. Widmaier, 157 N.J. 475, 724 A.2d 241 (1999), this Court (although finding a double jeopardy preclusion) held that a defendant’s request to have an attorney present before agreeing to take a breathalyzer test was a “conditional” response, “not rising to the level of the unequivocal consent needed to proceed with a breathalyzer test,” and therefore constituted a “refusal.” Id. at 497-98, 724 A.2d 241. The Court nevertheless recommended to the appropriate Executive Branch officer that the standard statement be amended “to eliminate any ambiguity concerning a motorist’s intent to submit to the test.” Id. at 498, 724 A.2d 241. The “Additional Instructions for Police Officer” were added to the form, and they require the reading of the “additional statement” if defendant’s “response is ambiguous or conditional in any respect whatsoever." State v. Schmidt, 414 N.J.Super. 194, 196, 203, 997 A.2d 1092 (App.Div.2010) (emphasis added). That statement “shall be read by the police officer to the person under arrest,” N.J.S.A. 39:4-50.2(e).
In State v. Duffy, 348 N.J.Super. 609, 792 A.2d 555 (App.Div. 2002), a defendant, after saying he would take a breathalyzer test, indicated that he was doing so “under duress,” and was returned to his cell without testing. Id. at 610-11, 792 A.2d 555. Speaking *91through Judge (later Justice) Wallace, the Appellate Division held that “once [the officer] interpreted the response as a refusal,” he was obligated to read the second part of the Standard Statement, and his failure to do so invalidated the conviction. Id. at 612-13, 792 A.2d 555. In other words, simply because the defendant said he consented to the breath test in the first place does not eliminate the possibility of an ambiguity being created by his subsequent conduct.
However, even though the additional statement embodied in the form provided by N.J.S.A. 39:4-50.2(e) did not have to be read by virtue of the initial consent, once defendant provided less than the minimum volume necessary to produce a reading, due process required that defendant be advised that he had to provide a breath sample sufficient to meet the minimum breath sample requirements in terms of volume and time, in the absence of which he would be arrested for “refusal.” See State v. Chun, 194 N.J. 54, 97-105, 152, 943 A.2d 114 (2008) (minimum requirements). See also State v. Marquez, 202 N.J. 485, 506, 998 A.2d 421 (2010) (noting that defendant must be informed of consequences of refusing to take breathalyzer test); State v. Bernhardt, 245 N.J.Super. 210, 219, 584 A.2d 854 (App.Div.1991) (reiterating that refusal occurs only after officer informs defendant of “the consequences of refusing”).
Here, the stipulation included admission into evidence of an “Investigative Report” which stated that “[b]efore the third test, Mr. Schmidt was re-instructed and advised if he did not give a long continuous breath that he would be considered a refusal.” In other words, defendant was given adequate notice of the consequences of his conduct. I consider such advice to be the minimum required, but sufficient to comply with due process,2 and concur in the judgment affirming defendant’s conviction for refusal.
*92For reversal and remandment—Chief Justice RABNER and Justices LONG, LaVECCHIA, ALBIN, RIVERA-SOTO, HOENS, STERN (temporarily assigned)—7.Opposed—None.
The DWI was dismissed because the State indicated it could not prove its case. See "Guidelines for Operation of Plea Agreements in the Municipal Court of New Jersey,” appendix to Part VII.
I believe adoption of the recommendation embodied in the last paragraph of Point III of the majority opinion will go a long way to solving the problem in this case. Ante at 88-89, 19 A.3d at 467-68. My view in this case, however, does *92not turn on any concern about the form or its amendment as opposed to the proofs required as a matter of due process.