                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                No. 12-10526
                Plaintiff-Appellee,
                                            D.C. No.
                v.                       1:11-cr-00427-
                                             AWI-1
SEAN HARRINGTON,
            Defendant-Appellant.           OPINION


     Appeal from the United States District Court
         for the Eastern District of California
   Anthony W. Ishii, Senior District Judge, Presiding

                Argued and Submitted
      August 16, 2013—San Francisco, California

                 Filed April 18, 2014

    Before: Stephen Reinhardt, John T. Noonan, and
          Andrew D. Hurwitz, Circuit Judges.

              Opinion by Judge Noonan
2               UNITED STATES V. HARRINGTON

                           SUMMARY*


                          Criminal Law

   The panel reversed a conviction for refusal to submit to a
blood alcohol test in a national park.

    The panel held that it was fundamentally unfair, and a
violation of due process, to convict the defendant when park
rangers three times told him that his refusal to submit to a
blood alcohol test was not in itself a crime, even though it
was.


                            COUNSEL

Katherine L. Hart (argued), Fresno, California, for
Defendant-Appellant.

Megan Anne Schultz Richards (argued) and Brian William
Enos, Assistant United States Attorneys, Benjamin B.
Wagner, United States Attorney, Camil A. Skipper, Appellate
Chief, Fresno, California, for Plaintiff-Appellee.




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
              UNITED STATES V. HARRINGTON                     3

                          OPINION

NOONAN, Circuit Judge:

    Sean Harrington appeals his federal conviction for refusal
to submit to a test of his blood alcohol content.

   We reverse.

                               I

                               A

   On the night of June 10, 2011, a federal park ranger
observed Harrington’s car stopped in a nonpublic area of
Yosemite National Park. The car’s lights were on; its engine
was running. The ranger approached the vehicle, finding
Harrington alone in the driver’s seat. According to the
ranger, Harrington was inebriated, argumentative, and upset.
Harrington refused a field sobriety test and was arrested on
suspicion of driving under the influence (DUI).

    Later, at the police station, Harrington refused any test to
determine his blood alcohol level. The jailer, another federal
park ranger, erroneously read the California admonition to
Harrington. It states:

       You are required by state law to submit to a
       [breath test] or other chemical test to
       determine the alcohol and/or drug content of
       your blood. . . . If you refuse to submit, or fail
       to complete a test, your driving privilege will
       be suspended for one year or revoked for two
       or three years. . . . Refusal or failure to
4             UNITED STATES V. HARRINGTON

       complete a test may be used against you in
       court. Refusal or failure to complete a test will
       also result in a fine and imprisonment if this
       arrest results in a conviction of driving under
       the influence. (emphasis added.)

The supervising ranger later read the California admonition
twice more. Harrington was never read the federal
admonition, nor was he informed of the consequences under
federal law of his refusal to be tested. Harrington insisted on
speaking to a lawyer but was rebuffed. No blood or breath
test was ultimately performed.

                              B

    On June 29, 2011, Harrington was arraigned in federal
district court on a six-count misdemeanor complaint. He
pleaded guilty to three counts, including an open container
violation and possession of marijuana. The government
dismissed two counts, including the DUI charge. Only one
misdemeanor—refusal to submit to a test to determine blood
alcohol content—remained at issue.

    A magistrate judge conducted Harrington’s bench trial.
After ordering supplemental briefing on the discrepancy
between the admonition Harrington actually received and the
admonition he should have received, the magistrate judge
found Harrington guilty of the refusal charge. He was
sentenced to 36 months of unsupervised probation and 120
days of confinement, with 90 days suspended pending
probation. The district court affirmed. Harrington timely
appeals.
              UNITED STATES V. HARRINGTON                     5

                              II

    The fundamental fact is that the park rangers misinformed
Harrington three times as to the criminal consequences of his
refusal. As Harrington was arrested in a national park, the
applicable law is that of the United States, not California. See
16 U.S.C. § 3.

     Federal law provides: “Refusal by an operator to submit
to a test is prohibited and proof of refusal may be admissible
in any related judicial proceeding.” 36 C.F.R. § 4.23(c)(2).
Thus, under California law, refusing a test is criminally
sanctioned only if the suspect is later found guilty of DUI;
under federal law, by contrast, refusing a blood alcohol test
is itself a misdemeanor unrelated to the outcome of any DUI
charge. The federal admonition that the park rangers should
have read is illuminating:

       If you refuse to submit to a test, or fail to
       complete a test, you will be charged with an
       additional offense for refusing the test, which
       carries a maximum penalty of 6 months in jail
       and/or a $5,000 fine. This charge is in
       addition to the DUI charge. (emphasis
       added.)

    The question before us, therefore, is whether the park
rangers’ error violated Harrington’s right to due process. We
review this question de novo. See Buckingham v. Sec’y of
U.S. Dep’t of Agric., 603 F.3d 1073, 1080 (9th Cir. 2010).
6             UNITED STATES V. HARRINGTON

                               A

     The Fifth Amendment establishes that “[n]o person shall
. . . be deprived of life, liberty, or property, without due
process of law.” U.S. Const. amend. V. Due process “is not
a technical conception with a fixed content unrelated to time,
place and circumstances.” Mathews v. Eldridge, 424 U.S.
319, 334 (1976) (internal quotation marks omitted). Rather,
it “is flexible and calls for such procedural protections as the
particular situation demands.” Id. (internal quotation marks
omitted). The touchstone is “fundamental fairness.” Walters
v. Nat’l Ass’n of Radiation Survivors, 473 U.S. 305, 320-21
(1985).

    To determine whether Harrington was denied due process,
we weigh (1) “the private interest that will be affected by the
official action”; (2) “the risk of an erroneous deprivation of
such interest through the procedure[] used, and the probable
value, if any, of additional or substitute procedural
safeguards”; and (3) “the Government’s interest” in keeping
the existing procedure. Mathews, 424 U.S. at 335.

    First, the restraint on physical freedom experienced
during incarceration is the quintessential deprivation of a
person’s liberty. See Oviatt ex rel. Waugh v. Pearce, 954
F.2d 1470, 1474 (9th Cir. 1992). Harrington’s liberty interest
was jeopardized when the rangers misinformed him of the
actual consequences of refusing the test—namely, a criminal
charge carrying a potential penalty of six months’
imprisonment. Jeopardy became reality when the magistrate
judge sentenced Harrington to 120 days in jail.

   Second, government officials risk erroneously depriving
a suspect of his liberty when they misrepresent the legal
              UNITED STATES V. HARRINGTON                    7

consequences of his choices. See United States v. Batterjee,
361 F.3d 1210, 1216 (9th Cir. 2004) (“[T]he Due Process
Clause of the Constitution . . . prohibits convictions based on
misleading actions by government officials.”). Here, the
rangers offered Harrington a choice of whether or not to
submit to testing. They advised him three times that refusal
to submit to testing had one certain consequence—he would
lose his driver’s license for a period of time—and two
additional possible consequences—his refusal could be used
against him in court, and, if he were later convicted of DUI,
the refusal would result in a fine or imprisonment.

    This was false. In reality, the consequence of refusal was
far more severe than the suspended license described by the
rangers. Under the applicable federal law, if Harrington
refused he could be—and he was—charged with a
freestanding criminal offense for the refusal, in addition to
and independent of any DUI charge. See 36 C.F.R.
§ 4.23(c)(2).

    There is a stark difference between the consequences of
refusal as described by the rangers and the real consequences,
as Harrington’s own case demonstrates.                Because
Harrington’s DUI charge was ultimately dropped, under
California law there would have been no further
consequences of his refusal to be tested. Under federal law,
however, the criminal charge for refusal would persist and a
sentence of imprisonment could result, as happened in
Harrington’s case. Had Harrington not been misled as to the
consequences of his refusal, he might well have preferred to
submit to testing rather than to fight an additional criminal
charge. “The erroneous deprivation thus consists of attaching
sentencing consequences to a choice that an individual may
not have made had the state provided him or her with
8             UNITED STATES V. HARRINGTON

accurate information. In other words, absent the inaccurate
information, the . . . jail term may not have been imposed.”
Roberts v. Maine, 48 F.3d 1287, 1293 (1st Cir. 1995).

    Finally, the government does not contend that it has any
interest in reading the California admonition in a federal
jurisdiction. We do not invent one. Using the federal
admonition requires no additional administrative burden: the
park rangers already have it at their disposal. Indeed, the
government’s interest aligns with Harrington’s because
federal employees should understand the laws governing the
jurisdictions they patrol. There is no profit to be gained from
jurisdictional confusion.

    In light of the foregoing, we conclude that the Mathews
factors tip in Harrington’s favor. In other words, it was
fundamentally unfair to convict Harrington on the refusal
charge when he was told time and again that his refusal to
submit to a blood alcohol test was not in itself a crime, even
though it was.

                               B

    Our conclusion is in no way undermined by South Dakota
v. Neville, 459 U.S. 553 (1983). There, the Supreme Court
held that due process is not violated when police officers fail
to inform a suspected drunk driver that his refusal to submit
to a blood alcohol test may be used against him at trial. Id. at
565–66. As the officers had warned the suspect that his
refusal could lead to a license suspension, he knew that
refusing the test “was not a ‘safe harbor,’ free of adverse
consequences.” Id. at 566. That the suspect was not
informed of all the possible adverse consequences of his
refusal was not constitutionally fatal because the officers’
              UNITED STATES V. HARRINGTON                     9

warnings did not “misleading[ly]” imply that no other such
consequences would follow. Id. at 565. Accordingly, the
State’s use of the suspect’s refusal at trial—in spite of the
officers’ “failure to warn” him of this precise consequence—
did not transgress principles of “fundamental fairness.” Id. at
566.

    Harrington’s case involves more than just a failure to
warn. Here, unlike in Neville, the warning read to Harrington
was affirmatively misleading: the rangers misrepresented the
criminal consequences of his refusal by giving him the
incorrect admonition. And here, unlike in Neville, the
consequence of Harrington’s refusal was a criminal charge
carrying with it the possibility of six months in prison.
Neville, therefore, does not control.

    The First Circuit has agreed with us, in a remarkably
similar case. In Roberts v. Maine, 48 F.3d 1287 (1st Cir.
1995), our sister circuit found a due process violation where
a suspected drunk driver was not informed of a very
important criminal consequence of refusing a chemical test:
a mandatory two-day jail sentence upon conviction for the
underlying DUI offense. Id. at 1289. After being denied a
chance to speak with an attorney, the suspect refused the test
and was eventually sentenced to two days’ imprisonment for
the refusal itself. Id. On these facts, the court weighed the
Mathews factors, distinguished Neville for reasons similar to
ours, and found that the suspect’s right to due process had
been violated. Id. at 1291–96.

    We read Roberts to hold that, if an admonition is given,
due process is offended when the warning misleads the DUI
suspect as to whether he may be criminally punished for the
refusal itself. Harrington, like the suspect in Roberts, was not
10            UNITED STATES V. HARRINGTON

informed that his refusal would directly, independently, and
irrevocably result in criminal liability. Indeed, the due
process violation is more flagrant here than in Roberts
because the rangers did not simply omit critical information;
they read Harrington the wrong information three times. The
risk to Harrington’s liberty interest is also weightier: a
maximum of six months’ imprisonment compared to just two
days. Finally, the criminal punishment in Roberts was
conditioned on the suspect’s conviction for the underlying
DUI offense; Harrington’s criminal charge, however, was
unconditional. Harrington’s appeal, thus, presents an even
more compelling case for reversal.

                             * * *

    We doubt that the Constitution requires any admonition
be given to DUI suspects. Cf. Missouri v. McNeely, 133 S.
Ct. 1552, 1566 (2013) (noting that “States have a broad range
of legal tools to enforce their drunk-driving laws,” with “all
50 States hav[ing] adopted implied consent laws”); Neville,
459 U.S. at 565 (explaining that one’s “right to refuse” a
blood alcohol test is not of constitutional origin; it is “simply
a matter of grace bestowed by” state legislatures). However,
when an admonition is given, we hold that due process is
violated where, as here, the admonition incorrectly informs
the suspect that his refusal is not a freestanding crime, when
in fact it is.

     REVERSED.
