
USCA1 Opinion

	




          March 1, 1995     UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 93-2392                                   ALAN D. ROBERTS,                                Plaintiff - Appellant,                                          v.                                   STATE OF MAINE,                                Defendant - Appellee.                                 ____________________                                     ERRATA SHEET               The  opinion of this Court  issued on February  16, 1995, is          amended as follows:               On page  34, 2d line  from end of  text:  Change  "infra" to                                                                  _____          "supra";           _____               On page 43, delete "Conclusion".                                   __________                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 93-2392                                   ALAN D. ROBERTS,                                Plaintiff - Appellant,                                          v.                                   STATE OF MAINE,                                Defendant - Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. Morton A. Brody, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                              Torruella, Cyr and Stahl,                                   Circuit Judges.                                   ______________                                _____________________               Robert E. Sandy, Jr., with whom Sherman, Sandy & Lee, was on               ____________________            ____________________          brief for appellant.               Donald W.  Macomber, Assistant  Attorney General, with  whom               ___________________          Michael E. Carpenter, Attorney General, Charles K. Leadbetter and          ____________________                    _____________________          Wayne S.  Moss, Assistant  Attorneys General,  were on brief  for          ______________          appellee.                                 ____________________                                  February 16, 1995                                 ____________________                    TORRUELLA,  Circuit Judge.   Maine's  "implied consent"                    TORRUELLA,  Circuit Judge.                                _____________          law  imposes  a  two-day   mandatory  minimum  jail  sentence  on          defendants  who refuse to take a blood/alcohol test and are later          convicted of  operating a  motor vehicle  under the influence  of          intoxicating liquor.  29 M.R.S.A.     1312, 1312-B.   Petitioner-          Appellant Alan D. Roberts challenges the constitutionality of his          conviction  and  sentence under  this law  because, prior  to his          decision not to take  a blood/alcohol test, (1) a  police officer          informed Roberts  of "the consequences"  of refusing to  take the          test but did not mention the mandatory jail sentence, and (2) the          police  officer denied Roberts' request to call his attorney.  We          find  that  under  the  particular circumstances  of  this  case,          Roberts' constitutional right to due process was violated and his          petition for writ of habeas corpus must be granted as to his two-          day mandatory sentence.                                    I.  BACKGROUND                                    I.  BACKGROUND                    On  January   25,  1991,  Officer  Alan   Main  of  the          Waterville, Maine Police Department stopped Roberts after Officer          Main observed Roberts driving  erratically.  Officer Main smelled          alcohol  on Roberts'  breath  and suspected  Roberts was  driving          while  intoxicated   but  initially  arrested  Roberts  only  for          operating a vehicle with  a suspended license in violation  of 29          M.R.S.A.     2184.    Officer Main  handcuffed  Roberts  and then          transported him to the  Waterville Police Station for processing.          Roberts remained in handcuffs throughout the relevant time period          at issue in this case.                                         -2-                    At  the  police  station,  Officer  Main  read  Maine's          "implied  consent" form to Roberts, which is normally read to any          driver  stopped or arrested for operating  under the influence of          intoxicating liquor pursuant  to 29  M.R.S.A.   1312.   The  form          states:                      By operating  or attempting to  operate a                      motor vehicle in  this State  you have  a                      duty to submit  to and complete  chemical                      tests  to  determine  your  blood-alcohol                      level and drug concentration.                      I will  give you  a breath test  unless I                      decide it is unreasonable, in  which case                      another chemical test will be  given.  If                      you are  requested to  take a blood  test                      you  may ask that  your physician perform                      the  test if your physician is reasonably                      available.                      If you  fail to comply with  your duty to                      submit  to  and  complete chemical  tests                      your driver's license or permit  or right                      to apply for or  obtain a license will be                      suspended for  at least 6 months  and may                      be suspended  as long  as 3 years.   Your                      failure to  submit to a chemical  test is                      admissible against  you at any  trial for                      operating  while  under the  influence of                      intoxicating liquor or drugs.                      I  have been advised  of the consequences                      of  failure to  comply  with the  duty to                      submit to and complete a chemical test at                      the request of an officer and DO NOT WISH                      TO SUBMIT TO A TEST.                                                                     _________________________________                                           Signature  of   Person  Refusing          Test                    Maine's  implied consent  form  essentially tracks  the          language of the "implied consent" statute which requires officers          to  warn suspected  drunk  drivers of  potential consequences  of                                         -3-          refusing to take the blood/alcohol test.  29 M.R.S.A.   1312.  As          the statute was originally enacted, the only two consequences for          failure  to consent were, as  the form states,  suspension of the          suspect's driver's license and the admission of the fact that the          suspect refused  to take the test in evidence at trial.  In 1987,          however, the Maine legislature amended its statute to provide two          additional  consequences, both involving sentencing, for refusing          to take a blood/alcohol test.   1987 Maine Laws, ch. 791.   Under          the current  law, a defendant's refusal to  submit to the test is          considered to be an "aggravating factor" for the determination of          that  defendant's   sentence   and,  more   significantly,   that          defendant's refusal  will result in a  mandatory minimum sentence          of 48 hours incarceration  upon conviction.  29 M.R.S.A.    1312-          B(2) & (2)(B)(4).                    Unfortunately,  these changes  did not  make their  way          into  the portion of the  statute mandating what  the police must          say to suspected  drunk drivers after those drivers  are stopped.          29 M.R.S.A.   1312(1).   As a result, the "implied  consent" form          was  never changed  to  reflect the  additional consequences  for          refusing to  submit to  a blood/alcohol  test.   Likewise, during          Roberts'  processing at  the police  station, Officer  Main never          informed Roberts  of the  additional consequences,  including the          mandatory jail sentence.                     During the period  when Officer Main was  administering          the "implied consent" procedure to Roberts, Roberts asked several          times  to  use  the telephone  for  the  purpose  of calling  his                                         -4-          attorney.   Officer  Main  refused to  allow  Roberts to  do  so.          Officer Main claimed that he denied Roberts permission to contact          hisattorneybecauseRobertswas uncooperativeandshoutingobscenities.                    Roberts  eventually refused  to take  the blood/alcohol          test.  He  also refused to sign the "implied  consent" form after          the  form was  read  to him.   Subsequently,  the police  filed a          criminal  complaint  against  Roberts charging  him,  among other          things, with  operating a  motor vehicle under  the influence  of          intoxicating liquor ("OUI") and  operating on a suspended license          in violation  of 29  M.R.S.A.    1312-B and  29  M.R.S.A.    2184          respectively.                       After a trial in the Maine district court,  Roberts was          convicted  on  the OUI  and  operating  on  a  suspended  license          charges.  At sentencing, the  court followed the requirements  of          29 M.R.S.A.    1312-B(2)(B)(4) and imposed  the mandatory minimum          48-hour sentence of incarceration as a result of Roberts' refusal          to take a  blood/alcohol test.1  Roberts appealed  his conviction          to  the  Kennebec County  Superior Court  and  then to  the Maine          Supreme Judicial Court.  Both appellate courts denied his appeal.          Following  remand  for   the  imposition  of   sentence,  Roberts          initiated  a Petition  for Writ  of Habeas  Corpus in  the United          States District Court for the District of Maine.  The Maine state          trial court ordered the  sentence of incarceration stayed pending          the  outcome of proceedings on  the habeas corpus  petition.  The                                        ____________________          1   The court also imposed a 90-day license suspension and a fine          for  Roberts' conviction  of  the substantive  offenses of  drunk          driving and driving with a suspended license.                                          -5-          federal district court dismissed  Roberts' habeas corpus petition          on October 29, 1993.  Roberts then brought this appeal.                                         -6-                                    II.  ANALYSIS                                    II.  ANALYSIS                    Roberts  raises  two  related  issues  on  appeal:  (1)          whether  Officer Main's  refusal  to allow  Roberts  to call  his          attorney  before deciding  whether to  take a  blood/alcohol test          denied Roberts of his  Sixth Amendment right to counsel;  and (2)          whether  Maine's  "implied   consent"  form  is   misleading  and          inaccurate, in violation of  Roberts' constitutional right to due          process.  Although  Roberts' Sixth Amendment right to  counsel is          not implicated  in this case, we do  find a violation of Roberts'          due process rights on  the grounds that all of  the circumstances          of  the  case, including,  but  not  limited to,  the  misleading          information, deprived Roberts of fundamental fairness.                    A.  Sixth Amendment Right to Counsel                     A.  Sixth Amendment Right to Counsel                        ________________________________                    The Sixth Amendment to  the United States  Constitution          guarantees  that, "[i]n  all criminal  prosecutions, the  accused          shall enjoy the right to . . . have the Assistance of Counsel for          his defense."  U.S. Const.  amend. VI.  It is axiomatic  that the          right to counsel attaches only  upon "the initiation of adversary          judicial  criminal  proceedings"   against  the  defendant,   and          thereafter  the right  applies to  all "critical  stages" of  the          prosecution, before,  during and after  trial.  United  States v.                                                          ______________          Gouveia, 467 U.S. 180, 189 (1984); United States v. Ash, 413 U.S.          _______                            _____________    ___          300, 310-13  (1973);  Kirby v.  Illinois,  406 U.S.  682,  688-90                                _____     ________          (1972); United States v. Wade, 388 U.S. 218, 225-27 (1967).                  _____________    ____                    The  initiation  of adversary  judicial  proceedings is          normally  "by   way  of  formal   charge,  preliminary   hearing,                                         -7-          indictment,  information, or  arraignment."   Kirby, 406  U.S. at                                                        _____          689.  In general terms,  the point at which the right  to counsel          attaches is  when "formal charges"  have been  initiated or  when          "the government  has committed  itself to  prosecute."  Moran  v.                                                                  _____          Burbine, 475 U.S. 412,  430-32 (1986); Gouveia, 467 U.S.  at 189;          _______                                _______          Kirby,  406  U.S.  at  689.    "By  its  very terms,  [the  Sixth          _____          Amendment]  becomes applicable  only when  the  government's role          shifts from investigation  to accusation.   For it  is only  then          that the assistance of  one versed in the 'intricacies   . . . of          law,'  . .  .  is  needed to  assure that  the prosecution's case          encounters 'the  crucible  of meaningful  adversarial  testing.'"          Moran, 475 U.S. at  430 (1986) (quoting United States  v. Cronic,          _____                                   _____________     ______          466 U.S. 648, 656 (1984)).                    In the  present case,  state officials had  not brought          any  formal charges against Roberts for drunk driving at the time          Roberts  refused to take the blood/alcohol test.  The first state          action  that  could conceivably  resemble  a  formal charge,  the          filing of the criminal complaint against Roberts for OUI, did not          occur until after  Roberts refused to submit to the  test.  Thus,          at the point  when Roberts was  denied his request to  speak with          his attorney, the government had not yet committed to prosecuting          him for OUI, nor had the government shifted its role from that of          investigation to  accusation.  We find,  therefore, that Roberts'          right to  counsel had  not attached  at the  time of the  alleged          violation of his Sixth  Amendment rights.  See McVeigh  v. Smith,                                                     ___ _______     _____          872  F.2d 725  (6th Cir.  1989) (finding  that the  Supreme Court                                         -8-          rejected the argument that a suspect's right to counsel  attaches          prior  to  taking a  blood alcohol  test  in Nyflot  v. Minnesota                                                       ______     _________          Comm'r  of  Public Safety,  474 U.S.  1027  (1985), in  which the          _________________________          Supreme Court dismissed  an appeal raising  the right to  counsel          argument for lack of  substantial federal question); Langelier v.                                                               _________          Coleman, 861 F.2d 1508,  1510 n.3 (11th Cir. 1988)  (noting right          _______          to counsel had not yet attached when suspect was asked  to take a          blood/alcohol test).                    We recognize the possibility  that the right to counsel          might conceivably  attach before any formal charges  are made, or          before an  indictment or arraignment, in  circumstances where the          "'government had crossed  the constitutionally significant divide          from fact-finder to  adversary.'"  United  States v. Larkin,  978                                             ______________    ______          F.2d  964, 969 (7th  Cir. 1992),  cert. denied,  113 S.  Ct. 1323                                            ____  ______          (1993)  (quoting United States Ex Rel. Hall v. Lane, 804 F.2d 79,                           __________________________    ____          82  (7th  Cir.  1986)).   Such  circumstances,  however, must  be          extremely limited  and,  indeed,  we  are  unable  to  cite  many          examples.    See  Larkin,  978  F.2d  at  969  (citing  Bruce  v.                       ___  ______                                _____          Duckworth, 659 F.2d 776, 783 (7th Cir. 1981), for the proposition          _________          that the  government may  not intentionally delay  formal charges          for  the  purpose of  holding a  lineup  outside the  presence of          counsel).   Overall,  Supreme  Court jurisprudence  on the  Sixth          Amendment appears to allow for few exceptions  to the bright-line          rule  that the  right  to  counsel  does  not  attach  until  the          government initiates  official  proceedings by  making  a  formal          charge.   See United States  v. Heinz, 983  F.2d 609, 612-13 (5th                    ___ _____________     _____                                         -9-          Cir. 1993) (interpreting Gouveia, 467 U.S. at 187-190, and  other                                   _______          Supreme Court  precedent as  establishing a strictly  formal test          for determining the initiation of judicial proceedings as opposed          to a more  functional test  based on whether  the government  had          taken on an adversarial stance  towards the defendant or  whether          the government had focussed  its investigation on the defendant);          see also  Moran, 475 U.S. at  431 ("The clear  implication of the          ________  _____          holding [in Maine v. Moulton, 474  U.S. 159 (1985)], and one that                      _____    _______          confirms the  teaching of  Gouveia, is  that the  Sixth Amendment                                     _______          right  to counsel does not  attach until after  the initiation of          formal charges.") (emphasis added).          ______________                    Roberts asserts that the special circumstances of  this          case  establish a Sixth Amendment right to counsel.  According to          Roberts,  the mandatory  sentencing consequences  of  refusing to          take  the  blood/alcohol  test,   combined  with  the  misleading          information  provided by  Maine regarding  the consequences  that          would arise from his refusal  to take the test and the  denial of          Roberts'  request   to  call  his   attorney  to  clear   up  the          misunderstanding, somehow transformed the  normally investigatory          testing  procedure  into  an   adversarial,  quasi-prosecutorial,          sentencing proceeding.   Appealing as  this argument  may be,  we          must  reject it.   Whatever  limited circumstances  may  exist in          which the right to counsel attaches prior to a formal charge,  it          cannot include  the circumstances in the present case because the          police were still waiting for the  outcome of their investigation          --  either from the results of the blood/alcohol test or from the                                         -10-          fact  of  defendant's refusal  to submit  to  the test  -- before          deciding whether or  not to bring charges  against the defendant.          The  government had  not  yet crossed  the constitutional  divide          between investigator  and accuser.   As  a threshold matter,  the          right to counsel had  not yet attached when Robert's  request for          counsel was  denied, and, therefore, we cannot reach the further,          and admittedly close, question of whether or not Roberts decision          to take the blood/alcohol test involved a "critical stage" of the          prosecution  at which  the right  to have  the advice  of counsel          would otherwise be constitutionally required.                    B.  Due Process                    B.  Due Process                        ___________                    We  do  find merit,  however,  in  Roberts' claim  that          Officer Main's  actions violated  Roberts' right to  due process.          The combination of circumstances in  this case presents a  unique          situation  in which  the  state  of  Maine  failed  to  meet  the          requirements of fundamental fairness.                     The Due Process  Clause of  the Constitution  prohibits          deprivations  of life, liberty,  or property without "fundamental          fairness"   through   governmental  conduct   that   offends  the          community's  sense of justice, decency  and fair play.   Moran v.                                                                   _____          Burbine,  475 U.S. 412, 432-34 (1986);  United States v. Russell,          _______                                 _____________    _______          411 U.S. 423,  432 (1973); Hannah  v. Larche,  363 U.S. 420,  442                                     ______     ______          (1960); Rochin v. California, 342 U.S. 165, 172-73 (1952); United                  ______    __________                               ______          States  v. Barnett, 989 F.2d  546, 560 (1st  Cir.), cert. denied,          ______     _______                                  ____  ______          114 S.  Ct. 148 (1993).   "Due process" is a  flexible concept --          "the processes  required  by  the  Clause  with  respect  to  the                                         -11-          termination of a protected interest will vary depending upon  the          importance   attached  to   the  interest   and  the   particular          circumstances under which the deprivation may occur."  Walters v.                                                                 _______          National Ass'n of  Radiation Survivors, 473 U.S. 305, 320 (1985).          ______________________________________          The  test for determining  whether state action  violates the Due          Process Clause, formally set out in Mathews v. Eldridge, 424 U.S.                                              _______    ________          319,  335 (1976), requires a  court to consider:  (1) the private          interest  that will be  affected by the  government's action; (2)          the risk of an erroneous deprivation of such interest through the          existing  procedure and  the  probable utility  of additional  or          substitute  procedural  safeguards;  and  (3)   the  government's          interest in adhering to  the existing procedure, including fiscal          and  administrative  burdens  that  additional  procedures  might          entail.   Id.; Walters,  473 U.S. at 321;  Mackey v. Montrym, 443                    __   _______                     ______    _______          U.S. 1, 10 (1979); In Re Nineteen Appeals Arising out of San Juan                             ______________________________________________          Dupont  Plaza  Hotel Fire  Litig., 982  F.2d  603, 611  (1st Cir.          _________________________________          1992).                    We  find  that  Officer  Main's actions  in  this  case          deprived Roberts of  liberty in a  manner lacking in  fundamental          fairness and offensive to the universal sense of fair play.   The          police  officer took Roberts into custody  and, while Roberts was          handcuffed at  the police  station, presented  him with a  choice          that   had  irrevocable   sentencing  consequences   involving  a          mandatory period of incarceration.   Roberts was asked to  take a          blood/alcohol test and told that  if he refused to submit to  the          test,  his drivers license would be suspended and the fact of his                                         -12-          refusal  could be used  against him at  trial.  Roberts  was then          informed that he had been "advised of the consequences of failure          to  comply."  This statement  was misleading because  there is at          least one additional consequence of failing to consent to a test:          a 48-hour term of incarceration.  Roberts was never told that his          refusal to take the test could also result in a mandatory two-day          jail  sentence if  he were to  be convicted of  driving under the          influence of alcohol.   Thus,  Roberts was not  informed of  "the                                                                        ___          consequences"  of failing  to comply  with the  "implied consent"          procedure.                    Following  Officer  Main's  reading  of   the  "implied          consent" form, Roberts asked to call his attorney before deciding          whether  or not  to take  the blood/alcohol  test.   Officer Main          denied  this  request,  despite   the  apparent  absence  of  any          inconvenience or  unreasonable delay in allowing  the phone call.          If  allowed to speak with  his attorney, Roberts  could have been          informed  of the  sentencing consequences  of  a decision  not to          submit to the blood/alcohol  test, thus clarifying the misleading          information  provided by  Maine's  "implied consent"  form.   The          attorney could have also  provided advice to Roberts at  the only          point during  the process for determining  Roberts' sentence when          the mandatory  consequences of the two-day  term of incarceration          could still be  avoided.   The attorney's advice  would come  too          late at the  sentencing hearing  itself, at which  time there  is          nothing the attorney can  do to mitigate or rebut  the imposition          of the  48-hour jail term.   Roberts thus had to  make a decision                                         -13-          with irrevocable  consequences for  his sentence after  the state          provided  him  with  inaccurate  information with  which  he  was          expected to  make  that  decision.   Under  this  combination  of          circumstances,  it  is  incumbent  upon  the  state  to  honor  a          reasonable request to call an attorney.  Refusing to provide this          simple safeguard violated Roberts' right to due process.                    A   review  of   the  Mathews   factors   confirms  our                                          _______          conclusion.  The liberty interest deprived by the state's actions          in  this case is Roberts' freedom from the mandatory two-day jail          sentence imposed  because of the refusal to  take a blood/alcohol          test.    Roberts'  interest  in  freedom  from  incarceration  is          certainly worthy  of substantial  due process protections.   See,                                                                       ___          e.g.,  United  States v.  Salerno,  481  U.S.  739,  750  (1987);          ____   ______________     _______          Addington  v. Texas, 441 U.S.  418, 423-25 (1979).   In addition,          _________     _____          Maine placed Roberts in a position  where he was forced to make a          decision  between  cooperating with  investigators  and suffering          mandatory   and  irrevocable  consequences   for  his  subsequent          sentencing.  Cooperation in this  case would probably have sealed          Roberts' fate at  trial but  it also would  have avoided  certain          harsher penalties.   Roberts  thus faced  a situation  similar in          some  respects to  plea  bargaining.   As such,  Maine's "implied          consent"  procedure implicates  Roberts'  right  to receive  fair          treatment by the prosecution  during plea bargaining.  Santobello                                                                 __________          v. New York, 404 U.S. 257, 261-62 (1971); Brady v. United States,             ________                               _____    _____________          397 U.S. 742, 756-58  (1970); United States v. Bouthot,  878 F.2d                                        _____________    _______          1506, 1511 (1st Cir. 1989).                                         -14-                    Moreover,   the   mandatory   sentencing   consequences          stemming  from Roberts'  refusal to  take the  blood/alcohol test          injects  important  elements  of  sentencing procedure  into  the          police investigation of a suspected OUI offense.  Because Roberts          can do  nothing to contest  the imposition  of a 48-hour  term of          incarceration  at  the sentencing  hearing  itself, the  critical          point  for  calculating  a   key  portion  of  Roberts'  sentence          essentially occurs at the  time Roberts is requested to  take the          blood/alcohol test.  Thus, this case implicates Roberts' interest          in fair sentencing procedures.  Gardner v. Florida, 430 U.S. 349,                                          _______    _______          358 (1977); United States v. Doe, 655  F.2d 920, 927-28 (9th Cir.                      _____________    ___          1980).  We find, therefore, that Maine's actions  towards Roberts          implicate  important liberty  interests deserving  of substantial          due process protection.                    Turning to the second  consideration under Mathews, the                                                               _______          risk of erroneous  deprivation of  the liberty  interest and  the          probable value of  an additional procedural safeguard, we  find a          strong due process justification  for allowing Roberts to contact          his attorney.   Although Officer Main's refusal  to allow Roberts          to call his attorney did not significantly increase the risk that          Roberts would  be erroneously convicted  of an  OUI offense,  the          officer's conduct greatly  increased the risk that a two-day jail          sentence would be imposed  on Roberts as  a result of a  decision          made  in reliance  upon  misleading information.   The  erroneous          deprivation thus consists of attaching sentencing consequences to          a choice  that an  individual may  not  have made  had the  state                                         -15-          provided him or her  with accurate information.  In  other words,          absent the inaccurate information, the  two-day jail term may not          have been imposed.                    We  are faced here with a unique situation in which the          sentencing consequences of incarceration  are imposed not so much          for the  substantive criminal conduct itself but for the separate          volitional act of refusing to cooperate with the investigation of          that conduct.  As  such, an erroneous deprivation of  liberty can          result   from  a   suspect's   behavior   under  rather   dubious          circumstances,  if not false pretenses, created by the state.  In          this  case, Roberts might have chosen to cooperate and thus avoid          the mandatory term  of incarceration  if he had  been allowed  to          speak  with his lawyer and  correct the inaccurate information he          received.   Once Roberts'  decision was made,  however, there was          nothing  the attorney or judge  could do at  sentencing to remedy          Roberts' tainted decision.                    On  the  other side  of the  coin,  there is  much that          allowing  Roberts to  call  his attorney  could  do to  safeguard          against the type of  erroneous deprivation of liberty at  risk in          this  case.   Plainly and  simply, Roberts'  attorney could  have          informed  Roberts of  the additional  sentencing  consequences of          refusing  to take  the  blood/alcohol test,  thus correcting  the          state's misleading information.   The attorney could also counsel          Roberts on the advisability of cooperating to avoid the mandatory          two-day sentence.  This is  the only point at which such  counsel          has any  value; once the decision whether or not to submit to the                                         -16-          test is made, the die is cast, and nothing the attorney can do at          sentencing will mitigate the effect of the two-day sentence.                    The present situation  thus presents concerns analogous          to  those expressed by the Supreme Court  in many of its right to          counsel cases.   See Wade,  388 U.S.  at 224 (affording  right to                           ___ ____          counsel at  critical pre-trial  stages of proceedings  "where the          results might well settle the accused's fate and reduce the trial          itself to a  mere formality");  Ash, 413 U.S.  at 315-16  (noting                                          ___          that "there were  times when  the subsequent trial  would cure  a          one-sided confrontation between  prosecuting authorities and  the          uncounseled defendant,"  rendering  the absence  of  an  attorney          acceptable,  but that there were other times when an attorney was          required  because there was no  such "opportunity to cure defects          at trial"); Maine v. Moulton, 474 U.S. 159,  170 (1985); see also                      _____    _______                             ________          Mempa v. Rhay,  389 U.S.  128, 133 (1967)  (reviewing holding  in          _____    ____          Townsend  v. Burke,  334 U.S.  736 (1948),  where the  absence of          ________     _____          counsel during sentencing  combined with false assumptions  about          the  defendant's  criminal  record   was  found  to  deprive  the          defendant of due  process, and  noting that the  counsel in  that          case "'might not  have changed  the sentence, but  he could  have          taken  steps to  see that  the conviction  and sentence  were not          predicated on  misinformation or  misreading of court  records, a          requirement of fair play which  absence of counsel withheld  from          this  prisoner.'")  (quoting  Townsend, 334  U.S.  at  741).   We                                        ________          therefore  conclude  that   Maine's  implied  consent   procedure          presents a  substantial risk of erroneous  deprivation of liberty                                         -17-          and  that  allowing Roberts  to call  his  attorney is  likely to          alleviate  the  risk  and,  as such,  is  a  valuable  procedural          safeguard.                    Finally,  we consider the  state's interest in refusing          to   allow  Roberts   to   call  his   attorney,  including   any          administrative and fiscal burdens such a phone call would entail.          There  is nothing in the record to indicate that allowing Roberts          to call  his lawyer from the  police station would impose  on the          police any meaningful burden whatsoever.   On the contrary, Maine          law  allows  for suspected  drunk  drivers to  request  their own          physician  to  conduct  the  blood/alcohol  test   if  reasonably          available.   29 M.R.S.A.   1312.  Maine thus already contemplates          making  reasonable accommodations  for  drunk  driving  suspects.          Allowing  a simple  phone  call  to  an  attorney  is  much  less          intrusive on the implied consent process than arranging a medical          procedure with the suspect's doctor.                    Given  the transient  nature of  the evidence  in drunk          driving  cases -- that is, the blood/alcohol level in a suspect's          blood  -- the  police  may  certainly  proceed with  the  implied          consent procedure if  a delay  would affect the  test results  or          otherwise  interfere with the testing procedure.   The police may          refuse  to wait for a suspect who  is unable to reach an attorney          within a reasonable period  of time or refuse to  undertake time-          consuming and  burdensome efforts to  contact an attorney  who is          not immediately available.  There is no indication, however, that          such was the case here.   Officer Main testified that he  did not                                         -18-          allow  Roberts   to  call   his  attorney  because   Roberts  was          uncooperative and shouting  obscenities.  We see  no relevance of          this fact to any state  interest in refusing to allow Roberts  to          make  a phone  call before  deciding whether or  not to  take the          blood/alcohol  test.   We  therefore  find  no significant  state          interest in refusing to  allow Roberts to call his  attorney that          would justify what we consider to be a denial of due process.                     To  clarify, we  do  not discount  Maine's interest  in          imposing an implied consent  procedure to encourage the voluntary          testing of drunk drivers, nor do we have any quarrel with Maine's          desire  to   impose  harsher  penalties  on   those  refusing  to          cooperate.   We see very  little interest, however,  in denying a          reasonable request  at the  police station  to call an  attorney,          where  that call could  serve to clear  up misleading information          regarding the testing procedure provided by the state.                    Furthermore, we do  not find,  in this  case at  least,          that a suspected drunk driver has a due process  right to contact          an  attorney  whenever  the  state  imposes mandatory  sentencing          consequences  upon   the  refusal  of  the  suspect   to  take  a          blood/alcohol test.  Rather, we find that where the suspect makes          a  reasonable  request to  contact his  or  her attorney  and the          attorney can correct misleading information provided by the state          at a  point when the suspect must make a decision that is crucial          for his or her  subsequent sentencing, due process requires  that          the suspect's request be honored.                    We  are  confronted  with  a   substantially  different                                         -19-          situation  in this  case  than the  one  that the  Supreme  Court          considered  in South Dakota v. Neville, 459  U.S. 553 (1983).  In                         ____________    _______          Neville, the Supreme Court  held that the Due Process  Clause was          _______          not violated when  a police  officer failed to  warn a  suspected          drunk driver that his  refusal to submit to a  blood-alcohol test          could be  used against him  at trial.   The  Court reasoned  that          because the drunk  driver in  that case  was specifically  warned          that  his refusal  to  submit to  the test  would  result in  the          suspension  of his license, the driver knew that his refusal "was          not a 'safe  harbor,' free of adverse consequences."  Id. at 566.                                                                __          The Court also  noted that it  was "unrealistic  to say that  the          warnings  given   here  implicitly  assure  a   suspect  that  no          consequences other than those mentioned will occur."  Id.2                                                                 __                    Unlike  Neville,  the  present  case is  not  a  simple                            _______          "failure to  warn" situation  involving a state's  withholding of          information  that it was never required to provide.  Rather, this          is  a  case in  which a  mandatory  sentence of  incarceration is          attached to  a suspect's decision  to take a  blood/alcohol test,          where the suspect is  given misleading information that indicates          no  such sentence  exists;  and further,  where  that suspect  is          denied  permission to speak to an attorney who could have cleared          up the misunderstanding and who could have provided advice at the                                        ____________________          2  The instructions  given to the defendant in  Neville contained                                                          _______          no language resembling the misleading statement in this case that          the  suspect  had  been  "advised  of  the  consequences."    The          instructions in Neville  merely informed the  suspect that if  he                          _______          refused to  take  a  blood/alcohol  test, his  license  could  be          suspended.  The suspect was then merely asked: "Do you understand          what I told you?"  Neville, 459 U.S. at 555 n.2.                             _______                                         -20-          only point  where the  sentencing consequences could  be avoided.          The Supreme Court did not address the due process implications of          these  circumstances.    Instead,  Neville  dealt  with  a  quite                                             _______          different  issue:  the  due  process implications  of  a  state's          failure to  warn about the use at trial of a suspect's refusal to          take a blood/alcohol test.  The differences between the two cases          are stark.                    First,  Neville considered  an interest  of much  lower                            _______          magnitude  than   Roberts'  liberty  interest  in   freedom  from          incarceration.  As the Supreme Court  found, the use of the  fact          that a suspect  refused to submit to  a test as evidence  against          that  suspect at  trial  does not  implicate the  suspect's Fifth          Amendment right  against  self-incrimination.    Id.  at  558-64.                                                           __          Thus, the suspect in Neville had no  protectable liberty interest                               _______          beyond the  general right to  a fair trial,  a right which  faced          little risk of erroneous  deprivation in that case.   Neville did                                                                _______          not  involve  a  mandatory  sentence  that  risked  depriving  an          individual  of the  important  liberty interest  of freedom  from          incarceration, a liberty interest that is involved here.                    Second, the  consequence about  which  Maine failed  to          warn Roberts in the present case is irrevocable and irrebuttable,          making the  suggested procedural safeguard --  permission to call          an attorney  -- crucial to protecting  Roberts' liberty interest.          In  the  Neville  case,  however, the  consequences  involved  an                   _______          evidentiary disadvantage  that  could be  rebutted, mitigated  or          otherwise explained by counsel at trial.  The blood/alcohol test,                                         -21-          therefore,  was  not  the  only  point  in  Neville  at  which  a                                                      _______          procedural safeguard would have had any value.                    Third, there is an  additional element of unfairness in          this  case, not found in Neville, due to the misleading nature of                                   _______          the  instructions given  to Roberts.   In  the Neville  case, the                                                         _______          Supreme Court  specifically noted that  the suspect was  given no          implicit  assurances  that  he  was  being   warned  of  all  the          consequences  of  refusing to  submit  to  testing,  id. at  566,                                                               __          whereas in  this case, Roberts was told  that he had been advised          of "the  consequences," incorrectly  implying that there  were no          additional consequences.   As a  result, Roberts faced  a greater          risk  of erroneous deprivation of his liberty than the suspect in          Neville.          _______                    Due   process   may   not  require   warnings   of  the          consequences of refusing to take a blood/alcohol test, and it may          not  require  a full  right to  counsel  for suspects  facing the          decision  whether or  not  to  submit  to  testing.    Under  the          circumstances of this case, however, as a matter of fair play and          decency,  due  process  does  require  that  Roberts  be  given a          reasonable opportunity  to call  his attorney before  deciding on          whether to be tested.                                      CONCLUSION                                      CONCLUSION                    For the  foregoing reasons, we find  that the mandatory          48-hour jail  sentence imposed  on Roberts  pursuant  to    1312-          B(2)(B)(4)  violates  due  process.     The  infirmities  in  the          procedures surrounding  Roberts' arrest did  not, however,  taint                                         -22-          his underlying  convictions for drunk driving and  driving with a          suspended  license.   Accordingly, the  judgment of  the district                                ___________________________________________          court is reversed and the case is remanded  to the district court          _________________________________________________________________          with  instructions  to issue  a writ  of  habeas corpus  upon the          _________________________________________________________________          failure of the  State of  Maine to vacate  the mandatory  48-hour          _________________________________________________________________          jail sentence imposed pursuant to   1312-B(2)(B)(4) and to accord          _________________________________________________________________          Roberts  a  sentencing hearing  at which  no minimum  sentence is          _________________________________________________________________          mandated.          ________                                                      "Concurrence follows"                                         -23-                    CYR, Circuit Judge (Concurring).  Although I am pleased                    CYR, Circuit Judge                         _____________          to  concur in  the result  reached in  the ably  crafted majority          opinion, I write separately on the due process claim.                    On direct  appeal,  the Maine  Supreme  Judicial  Court          ("Law Court"), citing State  v. Plante, 417 A.2d 991,  994 (1980)                                _____     ______          (pre-Neville), erroneously concluded that "the right to a warning               _______          of  the consequences  of refusing a  chemical test is  not one of          constitutional  dimensions."  State v. Roberts, 609 A.2d 702, 703                                        _____    _______          (Me. 1992).3  The  district court below likewise erred  in ruling          that a "requirement  that a driver submit to a chemical test does          not  implicate  the  due  process clause  of  the  Constitution,"               _________          Roberts v. Maine, No. 93-0154-B, slip  op. at 3 (D. Me. Sept. 24,          _______    _____          1993) (magistrate-judge's proposed findings  and recommendation),          aff'd,  slip op. at  1 (D. Me.  Oct. 27,  1993) (emphasis added).          _____          Consequently, neither court reached Roberts' due process claim.                    The Law Court premised its conclusion  in large part on          South  Dakota v. Neville, 459 U.S.  553 (1983).  See Roberts, 609          _____________    _______                         ___ _______          A.2d  at 703  ("the [Neville]  Court reasoned  that allowing  the                               _______          suspect to  choose whether to submit  to testing is 'a  matter of                                        ____________________          3   Under 28  U.S.C.   2254,  we accord de  novo review  to state                                                  __  ____          court rulings on federal constitutional issues, Wellman v. Maine,                                                          _______    _____          962 F.2d 70, 72 (1st Cir. 1992), as well as to mixed questions of          fact  and law, id. ("Federal  court may give  different weight to                         ___          the facts as found by  the state court and may reach  a different          conclusion in light  of the legal  standard") (quoting Sumner  v.                                                                 ______          Mata, 455 U.S. 591, 597 (1982)).  See also Cleveland Bd. of Educ.          ____                              ___ ____ ______________________          v.  Loudermill, 470  U.S.  532, 541  (1985) ("minimum  procedural              __________          requirements are a matter of federal law, they are not diminished          by the fact that the State may have specified its  own procedures          that  it may deem  adequate for determining  the preconditions to          adverse official action.").                                          -24-          legislative grace'  bestowed by  the state legislature  and thus,          not  subject  to  constitutional protections.").    However,  the          statement relied on by  the Law Court related to  Neville's Fifth          Amendment  self-incrimination claim, not  the due  process claim.          See infra at pp.  24-25.  The Neville Court  explicitly qualified          ___ _____                     _______          its  statement so as to obviate any intimation that penalties for          refusing  to submit to chemical  testing are beyond  the scope of          the Due Process Clause.  Neville,  459 U.S. at 560 ("Such penalty                                   _______          for  refusing  to take  a  blood-alcohol  test is  unquestionably          legitimate,   assuming   appropriate   procedural   safeguards.")                        ________   ___________   __________   __________          (emphasis added).4                    The  constitutional underpinnings  for the  more recent          Supreme Court pronouncements on "implied consent" procedures stem          from Schmerber v. California, 384 U.S. 757 (1966).  See Nyflot v.               _________    __________                        ___ ______          Minnesota Comm'r  of Pub. Safety,  474 U.S. 1027,  1027-29 (1984)          ________________________________          (summary  dismissal for  want  of  substantial federal  question)          (opinion  of  White,  J.,  dissenting  from  summary  dismissal);          Neville,  459 U.S.  553; see also  Mackey v. Montrym,  443 U.S. 1          _______                  ___ ____  ______    _______          (1979); Dixon v.  Love, 431 U.S. 105 (1977); Bell  v. Burson, 402                  _____     ____                       ____     ______                                        ____________________          4   Indeed, the  Plante case  itself, upon  which  the Law  Court                           ______          directly relied in  Roberts, 609  A.2d at 703,  involved a  self-                              _______          incrimination  claim as  well.   See  Plante,  417 A.2d  at  994.                                           ___  ______          Viewed  in context, the statement that an OUI suspect's "right to          refuse" testing  is "simply a matter of grace bestowed by the . .          . Legislature," Neville,  459 U.S.  at 565, was  meant merely  to                          _______          emphasize that the right  to refuse testing, unlike the  right to                             _____  __ ______          ______ ___  _____ __          silence underlying  Miranda warnings,  is not of  "constitutional          _______             _______          dimension."  Id.  Thus, Neville in no  sense eroded the "constit-                       ___        _______          utional dimension"  inherent in the traditional  procedural safe-          guards attending  deprivations  of protected  liberty  interests.          Id. at 560.  See Mackey v. Montrym, 443 U.S. 1, 17-19 (1979).           ___          ___ ______    _______                                         -25-          U.S. 535, 539 (1971);  Breithaupt v. Abram, 352 U.S.  432 (1957).                                 __________    _____          Schmerber  held the  Fifth Amendment  privilege against  self-in-          _________          crimination  inapplicable  because  blood-alcohol  level  testing          ("chemical  testing"),  albeit  a  Fourth  Amendment  search  and          seizure, simply yields real or physical evidence as distinguished          from  "testimonial"  evidence.    Schmerber,  384  U.S.  at  765.                                            _________          Accordingly,  the  State may  force  a  nonconsenting suspect  to                                        _____          submit to a reasonable chemical test under exigent circumstances,          without a warrant, provided there is probable cause to arrest the          suspect for "operating under the influence" ("OUI").  Id. at 766-                                                                ___          72.    And since  alcohol  and  drugs are  evanescent  substances          inexorably metabolized  by the body,  the "exigent circumstances"          requirement is almost invariably  met by the urgent need  to test          before a warrant can be obtained.  Id. at 770-71.                                             ___                    Years later, in Neville, the Supreme Court rejected two                                    _______                             ___          distinct   constitutional  challenges  to  an  "implied  consent"          ________          statute which  empowered South Dakota to  introduce into evidence          an OUI suspect's refusal  to submit to chemical testing.   First,          the  Court  held that  the  Fifth Amendment  right  against self-          incrimination  was never  implicated  because the  State did  not                                    __________          impermissibly  coerce the refusal.  Neville,  459 U.S. at 562-64.                                              _______          Second,  and  more to  the  present  point,  the  Court  rejected          Neville's  substantive due  process  claim premised  on Doyle  v.                                                                  _____          Ohio, 426  U.S. 610 (1976).   Neville, 459 U.S. at  564-66.  Even          ____                          _______          though  Neville  was not  warned that  his  refusal to  submit to          chemical testing  could  be offered  against  him at  trial,  and                                         -26-          notwithstanding the fact that the police had advised him that his          silence  could not be used  against him, see  Miranda v. Arizona,          _______                                  ___  _______    _______          384 U.S. 436, 467-73 (1966), the Supreme Court nevertheless found          no "misleading implicit assurances" that the refusal to be tested          would not  be  introduced in  evidence, since  "the warning  that          [Neville] could  lose his  driver's license  made  it clear  that          refusing  the test  was  not a  'safe  harbor,' free  of  adverse          consequences."  Neville, 459 U.S. at 565-66.  Neville thus upheld                          _______                       _______          the power of the State to penalize refusals to submit to chemical          testing, but  explicitly conditioned  its exercise on  the avail-          ability of "appropriate procedural protections."  Id.                        ___________ __________ ___________    ___                    The procedural due process analysis appropriate to  the          present  context  contrasts  starkly  with  the  substantive  due          process  analysis in  Neville,  where the  only unwarned  adverse                                _______          consequence  was that  the State  ultimately might be  allowed to                                                       _____          request the trier of fact, at trial, to infer that the refusal to          be  tested constituted  evidence  of his  consciousness of  guilt          (intoxication).   See  S.D.  Codified Laws    32-23-10.1.  (1980)                            ___          ("such refusal may be admissible" in evidence at trial.)  In such                         ___ __ __________          a  setting, a  defendant would  be afforded  the full  panoply of          procedural protections  available at  trial.  First,  the State's                                            __  _____          evidentiary  proffer of the refusal to be tested would be subject          to  objection by the defendant;  for example, on  grounds that it          did not evince the suspect's consciousness of guilt but mere con-          fusion  as to  his legal  rights.   See Fed.  R. Evid.  401, 403.                                              ___          Second, if the  refusal were admitted in evidence,  the defendant                                         -27-          would   be   allowed  to   introduce   evidence   to  rebut   any          "consciousness of guilt"  inference.  Finally, the  trier of fact          would be permitted,  and could  not be required,  see Carella  v.                                          ___               ___ _______          California,  491 U.S. 263, 265  (1989) (per curiam); Sandstrom v.          __________                                           _________          Montana,  442 U.S. 510,  514 (1979),  to infer  "consciousness of          _______          guilt," but only to  consider it, along with all  other evidence,          in  determining  whether  the   defendant  was  guilty  beyond  a          reasonable  doubt.   Thus,  in Neville,  no unwarned  consequence                                         _______          flowed inexorably from  the refusal  to be tested.   All  conven-          tional  trial procedures  for barring  and rebutting  the refusal          evidence  remained  available,  including  the  right  to  defend          against it on the issue of guilt.                    On the other hand, no meaningful procedure remained for                                          __________          Roberts to defend against the  term of confinement mandated  upon          conviction for OUI as a consequence of the unwarned refusal to be          tested.    See  Mempa  v.  Rhay,  389  U.S.  128,  133-34  (1967)                     ___  _____      ____          (sentencing  is critical  stage  in criminal  process); see  also                                                                  ___  ____          Palmer v.  City of Euclid, 402 U.S. 544, 546 (1971) (per curiam);          ______     ______________          cf. Burns  v. United States, 111  S. Ct. 2182, 2187  (1991) (even          __  _____     _____________          where   sentencing  court  is  vested  with  explicit  sentencing          discretion, sua sponte upward departure    absent prior notice to                      ___ ______          defendant    raises serious due process concerns).                    Under  the Maine  "implied consent"  procedure, see  29                                                                    ___          M.R.S.A.    1312, 1312-B)  (Supp. 1994) (collectively:   "section          1312"), the suspect  is never  warned that refusal  to be  tested          entails a mandatory minimum sentence upon conviction for OUI.  No                                         -28-          matter  how  compelling  or  innocent the  suspect's  reason  for          refusing  to be tested, see,  e.g., Jamros v.  Jensen, 377 N.W.2d                                  ___   ____  ______     ______          119,  123 (Neb. 1985), the sentencing court must impose a minimum          term  of confinement, without regard  to whether either the trier          of fact  or  the sentencing  judge ascribes  the slightest  "con-          sciousness  of guilt"  to  the suspect's  refusal  to be  tested.          Thus,  in due  process terms  Maine's standard  "implied consent"          procedure differs essentially from the process upheld in Neville,                            ___________                            _______          particularly  with  respect  to  the  absence  of  adequate  pre-          deprivation notice and a meaningful opportunity to be heard.  See                             ___                                        ___          Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985).          ______________________    __________                    The  State  need  not  acquiesce in  an  OUI  suspect's          refusal to submit  to testing under an "implied consent" statute.          Schmerber, 384  U.S.  at 770-71.    But  once it  opts  to  allow          _________          suspects to  refuse chemical testing, it may not disregard proce-          dural due  process constraints under the  Fourteenth Amendment by          depriving  suspects  of  their  protected   liberty  interest  in          remaining  free  from  incarceration,  without  affording  either                                                                     ______          adequate  predeprivation  notice  or  meaningful  postdeprivation                                            __          process.  See Loudermill, 470 U.S. at 541 ("While the legislature                    ___ __________          may  elect   not   to   confer   [an  interest],   it   may   not          constitutionally authorize  the deprivation of such  an interest,          once conferred, without appropriate procedural safeguards.")                    The majority opinion  in the  present case  essentially          relies  on a  Doyle-based substantive  due process  analysis, see                        _____                                           ___          Doyle,  426   U.S.  at   617-19,  in  concluding   that  it   was          _____                                         -29-          fundamentally unfair for the State of Maine to subject Roberts to          an unwarned mandatory minimum term of confinement for refusing to          be tested.   See supra pp.  10-12.  Although I  am in substantial                       ___ _____          agreement with its substantive due process analysis, particularly          that the  warnings given Roberts  included seriously  "misleading          implicit assurances"     a  subject neither  reached  by the  Law          Court nor discussed by the district court    it is  less clear to          me  that  a  substantive  due  process  analysis  is  appropriate          following Albright v. Oliver, 114 S. Ct. 807 (1994).                    ________    ______                    Even  though  the  Fourteenth  Amendment  affords  both          substantive  and procedural due  process protections, the Supreme          Court cautioned  in Albright  that "where a  particular amendment                              ________          provides  an explicit textual source of constitutional protection          against a particular sort of government behavior, that Amendment,          not the more generalized  notion of substantive due process  must          be the  guide for analyzing these claims."   Id. at 813.   In the                                                       ___          present context, therefore, Albright  appears to require at least                                      ________          initial resort to the procedural due process jurisprudence having          _______          particular application  to similar proceedings.   See Mackey, 443                                                            ___ ______          U.S.  at  10-19  (applying  procedural due  process  analysis  to          license suspension for refusal to submit to chemical testing).5                                         ____________________          5   Were it otherwise,  however, it should be  noted that "funda-          mental  fairness"  was  disserved  in  the  instant case  by  the          presence  of an  important  factor specifically  found absent  in                                             ____________  _____ ______          Neville,  459  U.S.  at 563-64.    That  is,  the Maine  "implied          _______          consent" advisory, whether by  design or inadvertence,  assuredly          has the effect of "subtly coerc[ing] [suspects] into choosing the                  ______          option [viz., refusal to be tested] that the State ha[s] no right                  ___          to  compel, rather than offering  a true choice."   Id. (emphasis                                              ____            ___          added).   Cf. Roberts, 609 A.2d  at 703 n.1 ("As  in Neville, the                    __  _______                                _______                                         -30-                    The  cornerstone regimen for identifying the particular          process appropriate to deprivations  of life, liberty or property          is limned in Mathews v. Eldridge, 424 U.S. 319 (1976).                       _______    ________                      Identification  of the  specific dictates                      of   due   process   generally   requires                      consideration of  three distinct factors:                      First,  the private interest that will be                      affected by the official  action; second,                      the  risk of an  erroneous deprivation of                      such  interest   through  the  procedures                      used, and the probable value, if  any, of                      additional   or   substitute   procedural                      safeguards; and finally, the government's                      interest, including the function involved                      and the fiscal and administrative burdens                      that   the   additional   or   substitute                      procedural requirement would entail.          Id. at 335.          ___                    Under   section   1312-B(2)(B)(4)   (1987),  a   person          convicted as a first-time OUI offender must serve not less than a                                                 ____ _____          two-day term of confinement  if he refused to submit  to chemical                                        ____________________          warnings provided in this  case were not designed to  "trick" the                                                   ________          defendant into  refusing a test,  then using the  refusal against          him  at trial.") (emphasis added).  As the Supreme Court excepted          such  subtle  coercion from  the  sweep of  its  ruling rejecting          Neville's  Fifth  Amendment  claim   against  self-incrimination,          Neville, 459 U.S.  at 566,  this factor too  would weigh  heavily          _______                                                   _______          against   the  Maine   "implied   consent"  advisory   under  any          substantive due process analysis  which may remain open following          Albright.   See  Albright,  114 S.  Ct.  at 820-21  (Souter,  J.,          ________    ___  ________          concurring) (due process clause affords  protections not directly          addressed by more particular constitutional provision).             Under either a procedural or substantive due process analysis,          however,  the State may not deprive  a person of the core liberty          interest in remaining free  from incarceration, without affording          either  adequate  advance   notice  or  meaningful   post-refusal          ______                              __          process, by imposing a mandatory minimum term of confinement upon          an  unwarned  suspect for  electing  to  accept a  state-tendered          option  to refuse chemical  testing.   Cf. Burns,  111 S.  Ct. at                                                 __  _____          2187; Neville, 459 U.S. at 563 (noting that it is  legitimate for                _______          the State to "offer  [the] option of refusing the  test, with the                        _____                                      ____ ___          attendant penalties for making that choice.") (emphasis added).          _________ _________ ___ ______ ____ ______                                         -31-          testing.  Maine alone mandates a minimum term of confinement upon          conviction for OUI  after failing to submit  to chemical testing,          yet inexplicably withholds  from its  standard "implied  consent"          advisory any mention of the mandatory minimum term of confinement          attending the refusal to submit. See supra p. 3.6                                           ___ _____                    The  standard  advisory  contemplates that  the  police          provide two explicit warnings before requesting an OUI suspect to                      ________          submit to chemical testing.  First, the suspect is to be informed          that  refusal  to be  tested  will  result in  an  administrative          suspension  of motor  vehicle operating  privileges for  not less          than six  months nor more than three years.  Id.   1312(1) (first                                                       ___          offense).   Second, the police "should  also inform the [suspect]          that the failure to comply with the duty to submit  to a chemical          test is admissible in evidence"  at a subsequent OUI trial.   Id.                                                                        __          Although a failure so  to inform the suspect does  not render any          chemical-test result  inadmissible, see id., no  sanction omitted                                              ___ ___          from  the standard  advisory can  be imposed  upon   the accused,          except the  mandatory minimum sentence  at issue in  this appeal.          ______ ___  _________ _______ ________  __ _____ __  ____ ______          See id.   1312 (1),(2),(8).7          ___ ___                                        ____________________          6  The police are required to read a standard advisory to the OUI          suspect, see  Roberts, 609 A.2d at  703, and no more,  see id. at                   ___  _______                        __ ____   ___ ___          704.  The  Law Court concluded that  it is "without authority  to          expand  the warning  to  encompass the  full  range of  potential          penalties,"  id., and we are  bound by its  interpretation of the                       ___          Maine  statute, see  Ortiz v. DuBois,  19 F.3d 708,  713 n.5 (1st                          ___  _____    ______          Cir. 1994), cert. denied,  63 U.S.L.W. 3515 (U.S. Jan.  9, 1995).                      _____ ______          Thus, the  omission of  the mandatory  minimum sentence  from the          standard advisory plainly originates in section 1312.           7Section 1312 (1) states:                                         -32-                    Among the other forty-nine states, only four impose any                                                                        ___                                        ____________________                      Before any  test specified is  given, the                      law enforcement officer shall  inform the                      person as to whom there is probable cause                      that, if the person  fails to comply with                      the duty  to submit to  and complete  the                      required chemical tests at  the direction                      of  the  law  enforcement  officer,  that                      person's  license. . .  will be suspended                      for a minimum of  6 months and may  be as                      long as 3 years.  The officer should also                      inform the  person  that the  failure  to                      comply  with  the  duty  to  submit  to a                      chemical  tests  (sic)  is admissible  in                      evidence against that person at any trial                      for  operating  under  the  influence  of                      intoxicating liquor or drugs.                      No   test  results  may  be  excluded  as                      evidence  in  any  proceeding before  any                      administrative officer or  court of  this                      State as  a result of the  failure of the                      law  enforcement  officer to  comply with                      this  prerequisite.  The  only effects of                      the failure of the officer to comply with                      this  prerequisite  are  as  provided  in                      subsections 2 and 8.                    Section 1312(2) states in relevant part:                        Any suspension in effect shall be removed                      if, after hearing,  it is determined that                      the person  who failed  to submit  to the                      test would not have failed to submit  but                      for  the failure  of the  law enforcement                      officer to  give either  or  both of  the                      warnings required by subsection 1.                    Section 1312(8) states in relevant part:                        If the law enforcement officer. . . fails                      to  give either of  the warnings required                      under  subsection 1,  the failure  of the                      person to comply with the  duty to submit                      to  the  chemical  tests  shall   not  be                      admissible,  except  when   a  test   was                      required pursuant to subsection 11, para-                      graph  D  [testing   after  an   accident                      involving death].                                         -33-          nonadministrative sanction  for refusing  chemical testing.   Two          _________________          states,  New York  and  New Jersey,  prescribe mandatory  minimum          civil fines  following an adjudication in  a separate proceeding,                                                       ________          based on an independent showing that the suspect failed to submit          to  chemical testing.   See N.Y. Veh.  & Traf. Law    1194 (2)(c)                                  ___          (1994)  (separate administrative  proceeding); N.J. Stat.  Ann.                              ______________          39:4-50.4a (1994) (separate judicial proceeding).  See also State                                      ________               ___ ____ _____          v. DiSomma,  621 A.2d 55 (N.J.  App. Div. 1993).8   Three states,             _______          Alaska, Minnesota and Nebraska, have  made it a separate criminal                                                          ________ ________          offense to refuse  to submit to chemical testing, but only if the          _______                                           ___ ____ __          suspect was so  informed at the  time the  request to submit  was          made.  See Ak.  Stat. Ann.    28.35.032 (a) (1994) ("after  being                 ___          advised. . . that the refusal is a crime"); Minn. Stat.   169.123          (b) (1994) ("At the time the test is  requested, the person shall          be informed . . . that refusal to take a test is a  crime.); Neb.          Rev.  Stat.   60-6,197(10) (1993) ("Any person who is required to          submit to a . . . chemical blood  test . . . shall be advised  of          (a) the  consequences of refusing to submit to such test or tests          . .  . .);  see  also Jamros,  377 N.W.2d  at  123 (holding  that                      ___  ____ ______          defendant cannot  be convicted unless forewarned  that refusal to          submit is separate crime).                                          ____________________          8  Under New Jersey law,  the mandatory $250 civil fine is to  be          imposed following a separate judicial proceeding, but only if the          suspect  was so informed prior  to refusing testing.   N.J. Stat.          Ann.   39:4-50.2.   Under New York law, a  mandatory minimum $250          fine  is  to  be  imposed, following  a  separate  administrative          proceeding, provided  the suspect was forewarned  that refusal to          be tested  may result in a license suspension.  N.Y. Veh. & Traf.          Law   1194 (2) (c).                                         -34-                    In  sum,  then,  section   1312,  unlike  the  "implied          consent" procedure  in any other state,  neither criminalizes the                                                   _______          refusal  to submit to chemical testing  nor contemplates that the                                                  ___          suspect be  forewarned  that  a criminal  penalty,  let  alone  a          mandatory minimum term of confinement, may attend the refusal.                    Absent adequate notice that particular conduct has been          criminalized, a person may  not be convicted or punished  for it.          See  Bouie v.  City  of Columbia,  378  U.S. 347,  361-63  (1964)          ___  _____     _________________          (failure to  afford notice  that statute  criminalized particular          activity);  Wright v.  Georgia, 373 U.S  284, 293  (1963) (same);                      ______     _______          Lambert  v. California,  355  U.S. 225,  227  (1957) ("Notice  is          _______     __________          required before property interests are disturbed, before  assess-          ments are made, before  penalties are assessed.").  As  a general          rule,  of  course,  publication  of a  criminal  statute  affords          adequate  notice to the public at large.  Cheek v. United States,                                                    _____    _____________          111 S. Ct. 604, 609 (1991) ("Based on the notion that  the law is          definite  and knowable, the common law presumed that every person          knew  the law.").   And, of  course, the common-law  rule    that          every  person is presumed to know the  law    not only applies in                                                                 _______          criminal cases,   United  States v.  International Mins.  & Chem.                            ______________     ____________________________          Corp., 402 U.S 558,  563 (1970), but has prompted  little concern          _____          in the usual course.                    The common-law  rule would be perverted,  however, were          it used to shield from constitutional challenge a deceptive State          advisory that is delivered directly to the individual suspect and          implicitly  undermines  any  constructive   notice  presumptively                                         -35-          afforded by publication.  See Raley v. Ohio, 360 U.S. 423, 438-39                                    ___ _____    ____          (1959);  see also  Griffin v.  Wisconsin, 483  U.S. 868,  875 n.3                   ___ ____  _______     _________          (1987) (citing Lambert, 335  U.S. at 228) ("If the  regulation in                         _______          question  established   a  standard  of  conduct   to  which  the          probationer  had  to  conform  on  pain  of  penalty  --  e.g.  a          restriction  on his  movements  --  the  state  court  could  not                                              ___  _____  _____  _____  ___          constitutionally  adopt  so  unnatural an  interpretation  of the          ________________  _____  __  _________ __  ______________  __ ___          language  that  the regulation  would  fail  to provide  adequate          ________  ____  ___ __________  _____  ____  __ _______  ________          notice.")   (emphasis  added).      Accordingly,   in  my   view,          ______          constructive notice by  publication cannot  insulate from  proce-          dural due process challenge the deceptive assurances the standard          "implied  consent"  form  instructs  the  police  to  communicate          directly  to the  suspect immediately  prior to  the  decision to          refuse  to submit to  chemical testing.   See Raley,  360 U.S. at                                                    ___ _____          438-39.                    The Supreme Court  made clear in  Neville, 459 U.S.  at                                                      _______          566, that courts should  be realistic in their assessment  of the                                      _________          context in which the allegedly misleading assurances are communi-          cated to the suspect.  It would be unrealistic in  the extreme to          suggest that  a suspect in  custody, whose only  actual knowledge                                                           ______ _________          comes directly from  the police  in the form  prescribed by  law,          nonetheless must  be deemed  on notice  that the police  advisory          incorrectly  states the  actual  consequences of  refusing to  be                                   ______          tested.9   See Raley, 360 U.S. at 438-39 (Although the Commission                     ___ _____                                        ____________________          9   A compelling public  interest normally warrants  invoking the          common-law   presumption   of   constructive   notice   based  on          publication; quite  simply, there is no  practicable alternative.                                         -36-          gave erroneous advice to the witnesses, "the fact remains that at          the  inquiry [it  was]  the voice  of  the State  most  presently                                                            ____  _________          speaking to  the appellants.")  (emphasis added); see  also supra          ________ __  ___ __________                       ___  ____ _____          notes 8 & 9.  Implicit in any such unrealistic  assessment is the          premise that a suspect in custody    denied access to counsel and          totally dependent upon the State for the integrity of the implied          consent advisory     should be  presumed to have  had not  merely          constructive notice,  but the  requisite actual knowledge  of the          ____________ ______                      ______ _________          procedural provisions of the "implied consent" statute that alone                                                                      _____          might alert him,  but see infra note 13, to the criminal sanction          _____             ___ ___ _____          attendant to a refusal to submit to testing.  See supra note 5.                                                        ___ _____                    The  standard  "implied  consent"  advisory,  naturally          interpreted, see Griffin, 483 U.S. at 875, n.3, realistically and                       ___ _______          in  context, see Neville,  459 U.S.  at 566,  undermines whatever                       ___ _______                      __________          constructive notice might normally be presumed from mere publica-          tion  of section  1312.  See  Raley, 360  U.S. at  438-39.10  The                                   ___  _____                                        ____________________          See  International Mins.  & Chem.  Corp., 402  U.S. at  563 ("The          ___  ___________________________________          principle that ignorance of the law is no defense applies whether          the law be a  statute or a duly promulgated and published regula-          tion.")  But where the only  purpose served by the presumption is          to perpetuate a seriously  flawed "implied consent" advisory that          is inherently unfair to the  suspect and counterproductive to any          legitimate State interest, due process must be first served.  See          __________                                                    ___          infra pp. 40-43.           _____          10  In  Raley, certain  witnesses were  advised by  the Ohio  Un-                  _____          American   Activities  Commission,   a   creature  of   the  Ohio          Legislature, that  they were  entitled to assert  a state-created          privilege against self-incrimination.  Raley, 360 U.S. at 424-25.                                                 _____          The  Commission  advisory was  inaccurate,  however,  as an  Ohio          statute conferred automatic transactional immunity upon witnesses          in  return for their  testimony.  Id.  at 431  (quoting Ohio Rev.                                            ___          Code    101.44).  After the witnesses  were convicted of criminal          contempt of the Ohio Legislature for refusing to answer questions          put  by its  Commission, id.  at 432,  the United  States Supreme                                   ___                                         -37-          Court  in  Raley  concluded   that  certain  witnesses  had  been                     _____          convicted without  due process "for exercising  a privilege which          the  State clearly had told [them] was available . . . ."  Id. at                                 ____                                ___          438  (emphasis added).  The Court even reversed the conviction of          another  witness, Brown, who  was never advised  that a privilege                                            _____ _______          existed,  but  whose  attempts   to  assert  privilege  had  been          facilitated by the Commission.11   Id. at 430.  See  Neville, 459                                             __           ___  _______          U.S.  at 566 (leaving open  the possibility that  the State might          "unfairly trick" a person with an "implicit promise"); cf. Cox v.                                                                 __  ___          Louisiana,  379 U.S.  559, 571  (1965) (vacating  convictions, as          _________          violative of  procedural due process, on  grounds that defendants          had been advised by police officials that picketing was permitted          at the arrest site).                     Similarly,  the  standard  "implied  consent"  advisory          challenged by Roberts conveys  not merely a "mixed message,"  see                                                                        ___          United States  v. Smith, 940 F.2d  710, 715 (1st Cir.  1991), but          _____________     _____          one  likely to befuddle a Philadelphia lawyer.  While it requires          the police to  advise the suspect that he has  the duty to submit          to testing, it also requires that the suspect be told that he may          elect  not  to  submit  to   testing,  subject  only  to  certain                                        ____________________          Court set aside their convictions as violative of the Due Process          Clause of the Fourteenth Amendment.  Id. at 437.                                                ___          11  Significantly,  the Commission permitted  Brown to utilize  a          "shorthand" method  for claiming  privilege, id. at  430-31 ("the                                                       ___          Chairman's concern [as to  whether Brown was asserting privilege]          is  inexplicable on  any  other basis  than  that he  deemed  the          privilege available at the inquiry, and his statements would tend          to create such an  impression in one appearing at  the inquiry"),          without informing him that the claim was invalid, id. at431-32.                                                              ___                                         -38-          administrative  and evidentiary  consequences.    Although it  is          conceivable that "lesser included" sanctions for refusing testing                            ______          might be encompassed within Neville's "no safe harbor" rationale,                                      _______          see Neville, 459  U.S. at 565-66, Maine's standard advisory could          ___ _______          only  be salvaged on  the counterintuitive theory  that notice of          the  lesser sanction should be deemed to encompass the greater                                                                    _______          both in terms of severity and constitutional dimension    thereby          abandoning  the  central  constitutional  concern  for meaningful                                                                 __________          process.   See Armstrong v. Manzo, 380  U.S. 545, 551 (1965) (due                     ___ _________    _____          process clause envisions that  the process due be accorded  "at a          meaningful  time and in a meaningful manner"); Raley, 360 U.S. at                                                         _____          438;  cf. United States v.  Cardiff, 344 U.S.  174, 176-77 (1952)                __  _____________     _______          ("We cannot sanction taking  a man by the  heels for refusing  to          grant the permission which  this Act on its face  apparently gave          him the right to withhold.   That would be making an act criminal          without   fair  and  effective  notice.")  (overturning  criminal          conviction  for  refusing admittance  to government  inspector in          reliance on regulatory provision that appeared to confer right to          refuse).12                                         ____________________          12  The Law  Court observed that   1312 was not designed to trick                                                          ________          Roberts into  refusing to  be tested.   Roberts, 609 A.2d  at 703                                                  _______          n.1,  ("As in Neville,  the warnings provided  in [Roberts'] case                        _______          were  not designed to "trick" the defendant into refusing a test,          then using the  refusal against  him at trial.")   Supreme  Court          case law makes clear, however,  that where an "established  state          procedure"  deprives a  person  of a  protected liberty  interest          without  appropriate  safeguards, a  violation of  procedural due          process obtains.  See Logan v. Zimmerman Brush Co., 455 U.S. 422,                            ___ _____    ___________________          436  (1982); see also Raley, 360 U.S.  at 438 ("While there is no                       ___ ____ _____          suggestion  that the  Commission  had any  intent to  deceive the          appellants, .  . . to  sustain the judgment  of the Ohio  Supreme          Court on  such a basis after  the Commission had acted  as it did                                         -39-                    Although the standard  "implied consent" advisories  on          the   administrative   (license   suspension)   and   evidentiary          (admission of test refusal) sanctions for refusing testing afford          fair notice that  refusal is  "not a safe  harbor", Neville,  459                                                              _______          U.S.  at  566,  Neville  does not  insulate  from  constitutional                          _______          challenge state-prescribed advisories that actively instigate the          natural  and  realistic  interpretation  that  no  sanction  more          serious  than the warned  sanctions will attach  to the suspect's          refusal to submit  to testing.13   See, e.g., Raley, 360  U.S. at                                             ___  ____  _____          425.  Furthermore,  by instructing  the police to  bait the  "no-                                        ____________________          would  be to sanction the most indefensible sort of entrapment by          the  State     convicting a  citizen  for exercising  a privilege          which the State clearly had told him was available to him.")            13   The  standard "implied  consent" advisory  presents suspects          with  a deceptive  choice  in two  vital  respects.   First,  the          suspect is never informed  of the most serious, unmitigable,  and          irremediable sanction  for refusing to  be tested.   Second, were          the  State to  choose  to force  testing  upon the  suspect  not-          withstanding  his refusal, it is far from clear that the "option"          of  refusal  would  avail  the  suspect  anything  other  than  a          mandatory minimum sentence.  Compare Me. Rev. Stat. Ann. tit. 29,                                       _______            1312 (1987) with Me. Rev.  Stat. Ann. tit. 29,   1312(2) (Supp.                        ____          1985-86).             Unlike the  defendant in  Smith, 940  F.2d  at 715  (rejecting                                       _____          entrapment-by-estoppel  claim),  there  is  no   suggestion  that          Roberts had any knowledge  that the "no-test" option  tendered by                          _________          the  arresting officer  was  punishable by  a  mandatory term  of          confinement.   The Smith  court reasoned that  an alleged  "mixed                             _____          message" from a police officer "could not have reasonably invited          [the defendant's]  reliance. .  ." because  it was  never claimed          that the officer informed Smith that his conduct was lawful.  Id.                                                                        __          at  715.   In  the  present  case,  however,  reliance  upon  the          deceptive  advisory  was  plainly  reasonable.   The  alternative          conclusion would be either that the information actually provided          the  suspect at the  scene is  immaterial, but  see id.,  or that                                                     ___  ___ __          constructive  notice   of  the  statutory  language   trumps  the          knowledge  actually  acquired  by  the suspect  from  the  police          officer at the scene.  But see Raley, 360 U.S. at 438-39.                                 ___ ___ _____                                         -40-          test" option with the  implicit assurance that "the consequences"          for  refusing chemical  testing  are noncriminal  in nature,  see                                                                        ___          supra pp. 29-30, the standard advisory seems well suited to snare          _____          even  the most wary suspect.  After all, rarely in the experience          of  courts,  let alone  ordinary  citizens,  are law  enforcement          officers   cast  as  exclusive  advisors  to  custodial  suspects          concerning  a state-tendered  option  not to  perform an  implied                                                ___          duty,  and then  instructed to  warn  individual suspects  of the          noncriminal sanctions for abjuring their duty, without mentioning                                                         _______ __________          the criminal  consequences.   Under no natural  interpretation of          ___ ________  ____________          the  standard  advisory is  it  fair  to say  that  a  suspect is          afforded meaningful  pre-refusal notice of  the mandatory minimum                   __________  ___          sentence.14   See  Raley,  360  U.S.  at  438-39;  cf.  Reich  v.                        ___  _____                           ___  _____          Collins,  115 S. Ct. 547, 550-51 (1994) (denial of procedural due          _______          process results  where statute,  naturally read,  allowed citizen          choice between predeprivation or postdeprivation challenge to tax          assessment,  but state  supreme court  disallowed postdeprivation          review after citizen had elected to prepay tax assessment).  A          coordinate  procedural safeguard  under  the Due  Process  Clause          dictates that any opportunity to be heard shall be provided "at a          meaningful time and in a meaningful manner."  Armstrong, 380 U.S.                                                        _________                                        ____________________          14   Moreover, under  the rule of  lenity, any  ambiguity in  the          standard "implied consent" advisory must be resolved in favor  of          the  accused.  See United States v.  Kozminski, 487 U.S. 931, 952                         ___ _____________     _________          (1988) (identifying purposes  underlying rule of lenity  as:  the          promotion  of fair notice "to those subject to the criminal laws,          minimiz[ing] the risk of  selective or arbitrary enforcement, and          . . . maintain[ing] the proper balance between [the legislature],          prosecutors and courts. . . ."                                         -41-          at 552.  As there is no meaningful post-refusal opportunity to be                                  __________ ____          heard on the  imposition of the mandatory  minimum sentence under          section  1312, and no suggestion that  the state sentencing court          contemplated a  two-day term  of confinement irrespective  of the          mandated minimum  imposed pursuant to  section 1312-B(2)(B)(4), I          can  only conclude  that  the process  accorded Roberts  violated          fundamental notions of procedural due process.15                    Finally, the analyses contemplated by the Supreme Court          in  Mathews,  424   U.S.  at  335,  clearly   indicate  that  all              _______          appropriate process can be accorded under section 1312 simply  by          adding a few words to the standard "implied consent" advisory.                    (i)  The Private Interest                    (i)  The Private Interest                         ____________________                    The  core liberty interest Roberts asserts in remaining          free  from  incarceration  is  entitled to  full  procedural  due          process  protection.  See Board of Regents v. Roth, 408 U.S. 564,                                ___ ________________    ____          571-72  (1972);  Bouie, 378  U.S.  at  362 (overturning  criminal                           _____                                        ____________________          15  It is neither plausible to suggest, nor discernible from  the          record,  that  the  mandatory  minimum term  of  confinement  was          imposed  simply as  punishment  for the  underlying OUI  offense.          First, the mandatory minimum sentence was not preordained by  the          OUI conviction but by  the unwarned refusal to submit  to testing          in  the   moments  following   the  arrest.     Although   it  is          preconditioned on an OUI conviction, all meaningful discretion on          the  part of  the sentencing  court is  withdrawn as  an unwarned          consequence of  the defendant's noncriminal refusal  to submit to          testing.  Second, no mitigating circumstances, either in relation          to  the refusal to be tested  or the commission of the underlying          offense,  can enable the  court to  sentence below  the mandatory          minimum.    Third, the  statutory  description  of the  mandatory          minimum  sentence  for refusing  testing      as an  "aggravating          factor," see   1312-B(2)  ("refusal to submit to  a chemical test                   ___          shall  in every case  be an aggravating  factor")     is itself a          misleading euphemism for what is in reality a conclusive sentenc-          __________ _________                          __________ ________          ing  mandate which the court  is required not  merely to consider          ___  _______                     ________          but to impose without regard to any mitigating circumstance.                                           -42-          conviction  obtained through  procedural due  process violation);          Wright, 373 U.S. at 287 (same).          ______                    (ii) The Risk of Erroneous Deprivation                    (ii) The Risk of Erroneous Deprivation                         _________________________________                    The risk that an  erroneous deprivation of liberty will          occur  is roughly  commensurate with  the relevance  the unwarned          consequence  bears to  the  decision  to  refuse  testing.    The          unwarned  mandatory  term  of  confinement     the  most  serious          consequence     surely  bears  great relevance  to the  "no-test"          decision;  even a  presumptively determinative  relevance in  the          present circumstances.                    Significant  derivative risks attach  to the inaccurate          advisory  as  well.   No  doubt  there  are  many first-time  OUI          suspects with neither  the knowledge nor the experience to assess          whether  their blood-alcohol  content  exceeds  the  prima  facie                                                               _____  _____          intoxication level  prescribed by statute.  For such suspects, at          least,  it cannot  be claimed  that an  accurate advisory  on the          mandatory minimum term of confinement attendant upon a refusal to          submit to testing would  not materially influence their decision.          Thus,  the deceptive  "implied consent"  advisory not  only risks          erroneous  conviction  (e.g., as  a  consequence  of allowing  an                     __________   ____          unwarned  refusal in  evidence  where chemical  testing may  have          revealed a blood-alcohol content below the prima facie level) but                                                     _____ _____          a sentence more severe than would have been imposed by the  court            ________          but  for the suspect's unwarned refusal to be tested (e.g., where                                                                ____          reliable  test  results  would  have  disclosed  a  blood-alcohol          content below the prima facie intoxication level).                            _____ _____                                         -43-                    The  undeniable value  of  a ready  alternative to  the          deceptive advisory is  obvious.  The legitimate  interests of the          State, as well as the accused, would be significantly advanced by          the  simple inclusion of a  straightforward warning that a first-          time refusal to submit to chemical  testing must be followed by a          minimum term of confinement upon conviction for operating a motor          vehicle while under the influence of alcohol or drugs.  The State          would  advance  its prospects  for  obtaining  the most  reliable                                                                   ________          evidence of  intoxication     the suspect's  blood-alcohol level,          see  Mackey,  443  U.S.  at 19  (characterizing  "chemical  test"          ___  ______          results as  "the most reliable  form of evidence  of intoxication          for  use in  subsequent  proceedings.)     while  the suspect  in          custody would  receive  full,  fair, and  timely  notice  of  the          relevant options and their consequences.                    (iii) Governmental Interests                    (iii) Governmental Interests                          ______________________                    Lastly, the  governmental interests  at stake,  and the          administrative  and  fiscal burdens  attendant to  any additional          procedural safeguard, must be considered.   See Mathews, 424 U.S.                                                      ___ _______          at  347-48.   Although  the  police  power  is  among  the  least          limitable, Lambert, 355 U.S. at 228, the State of Maine points to                     _______          no  governmental interest  in omitting  mention of  the mandatory          __          minimum  sentence  in its  standard  advisory.    Indeed,  it  is          difficult to  posit a legitimate governmental  interest served by                                __________          implicitly misleading  OUI suspects  into refusing to  be tested.                                                    ________          Rather,  the State's  legitimate interest  in obtaining  the most          reliable   evidence  of   intoxication,  through   the  voluntary                                         -44-          cooperation  of OUI  suspects, is better  served by  advising the                                            ______          suspect of all sanctions for refusing testing.                     ___               ________                    The State  has a  paramount interest in  minimizing any          pre-testing   delay  which  might  render  chemical-test  results          unreliable.  See  Schmerber, 384 U.S. at 770-71.   In all likeli-                       ___  _________          hood,   however,  a  simple,  straightforward  amendment  to  the          standard advisory  would expedite chemical testing; certainly, it          would not  delay it.16   And the  effort to eradicate  the tragic          consequences  of  drunken  driving  on Maine  highways  would  be          advanced thereby, rather than hindered.                     The  ease with  which an  alternative procedure  can be          implemented  likewise weighs heavily in favor  of an amendment to          the standard advisory,  see Mathews,  424 U.S. at  348 ("At  some                                  ___ _______          point  the benefit of an additional safeguard to the individual .          . . may be  outweighed by the cost."), especially  since it would          occasion neither pre-testing delay nor significant expense.                    As  the  mandatory  minimum  sentence  was  imposed  in          violation of the Due Process Clause, I agree that the writ should          enter  in  the event  the  State of  Maine  does  not vacate  the          mandatory  minimum sentence  and afford  petitioner  a meaningful                                        ____________________          16  The majority opinion persuasively demonstrates  that no Sixth          Amendment right to counsel arose until well after Roberts refused          to be tested.   But though I share the view  that Roberts was not          accorded the process due when  confronted with the choice whether          to  submit to chemical  testing, I  am unable  to agree  with the          court that  he was entitled to the  assistance of counsel at that          time,   as  distinguished   from   appropriate  notice   of   the                                             ___________  ______          consequences of refusing.                                           -45-          sentencing  hearing  at  which  section  1312-B(2)(B)(4)  is  not          applied.                                         -46-
