McDonnell v. Commissioner of Public Safety , 460 N.W.2d 363 ( 1990 )

DAVIES, Judge

(concurring in part, dissenting in part).

Under the relevant statutory and case law addressing DWI, the police may arrest a suspected drunk driver, hold the driver in custody, deny the driver an opportunity to consult with an attorney, and then presume to give the driver an “advisory” which must substitute for a lawyer’s advice. I find no implied consent precedent rejecting a due process obligation that the state’s “advisory” be accurate and nonprejudicial in a circumstance where the state presumes to be counselor to a person it holds in custody.

Judge Lansing’s analysis of Moser provides, as to all drivers who do not have prior convictions, a wholly satisfactory analysis in terms of prejudice. I concur in that portion of her opinion.

As to drivers with prior convictions, the current advisory is defective in its failure to give adequate warning of the gross misdemeanor liability that results from refusal to take the test. That defect in the advisory becomes prejudicial, however, only when gross misdemeanor refusal, is prosecuted. This is the view taken by Judge Huspeni; I join fully in her opinion, adding only that the defects of the advisory can be easily corrected by the legislature — and should be.