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State v. Kanikaynar3/26/1997
ivers of the mandatory sentencing enhancement so that they may have a fair chance to understand the consequences of their decision is great.
3. The Third Mathews Prong or Factor
{35} The third prong of the Mathews analysis requires us to consider the government's interest and the administrative burden the additional procedural requirement would entail. Mathews, 424 U.S. at 335. The State has a strong interest in obtaining evidence through the administration of chemical tests. . Cooperation of DWI suspects would be more rather than less likely if they were informed of the most serious consequences of refusing the chemical tests. See (Cyr, J., Concurring).
{36} The State claims it would be unduly burdened by the requirement of an additional warning, asserting that officers would need to discover the prior DWI history of each suspect to accurately warn of the minimum confinement a refusal would mandate. I disagree. A simple warning to suspects would suffice to inform them that their refusal could result in some loss of liberty. See id. I suggest the following as an example--"In the event that you are convicted of DWI, your refusal to submit to a chemical test may result in minimum mandatory incarceration of sixty days."
II. CONCLUSION
{37} I would hold that, under the Mathews three-prong analysis, the failure to advise or warn Defendant of the possible criminal consequences of his refusal to take the breath test violated Defendant's right to due process. Consequently, I would reverse the aggravated portion of Defendant's conviction for DWI and remand to the District Court with instructions to resentence him to the mandatory minimum of thirty days, after deducting the sixty days mandatory sentence imposed as a result of the aggravation. The majority having decided otherwise, I Dissent.
RUDY S. APODACA, Judge
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