TORRUELLA, Chief Judge.
Maine’s “implied consent” 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
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.
[1289]*1289At 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 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) & (25(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 attorney. Officer Main refused to allow Roberts to do so. Officer Main claimed that he denied Roberts permission to contact his attorney because Roberts was uncooperative and shouting obscenities.
Roberts eventually refused to take the blood/aleohol 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 [1290]*1290Roberts appealed his conviction to the Ken-nebec 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. federal district court dismissed Roberts’ habeas corpus petition on October 29, 1993. Roberts then brought this appeal.
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
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, 104 S.Ct. 2292, 2298, 81 L.Ed.2d 146 (1984); United States v. Ash, 413 U.S. 300, 310-13, 93 S.Ct. 2568, 2574-75, 37 L.Ed.2d 619 (1973); Kirby v. Illinois, 406 U.S. 682, 688-90, 92 S.Ct. 1877, 1881-83, 32 L.Ed.2d 411 (1972); United States v. Wade, 388 U.S. 218, 225-27, 87 S.Ct. 1926, 1931-32, 18 L.Ed.2d 1149 (1967).
The initiation of adversary judicial proceedings is normally “by way of formal charge, preliminary hearing, indictment, information, or arraignment.” Kirby, 406 U.S. at 689, 92 S.Ct. at 1882. 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, 106 S.Ct. 1135, 1145-47, 89 L.Ed.2d 410 (1986); Gouveia, 467 U.S. at 189, 104 S.Ct. at 2298; Kirby, 406 U.S. at 689, 92 S.Ct. at 1882. “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, 106 S.Ct. at 1146 (1986) (quoting United States v. Cronic, 466 U.S. 648, 656, 104 S.Ct. 2039, 2045, 80 L.Ed.2d 657 (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 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, 106 S.Ct. 586, 88 L.Ed.2d 567 (1985), in which the Supreme [1291]*1291Court 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, — U.S. -, 113 S.Ct. 1323, 122 L.Ed.2d 709 (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 Cir.1993) (interpreting Gouveia, 467 U.S. at 187-90, 104 S.Ct. at 2296-99, 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. át 431, 106 S.Ct. at 1146 (“The clear implication of the holding [in Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985) ], and one that confirms the teaching of Gouveia, is that the Sixth Amendment right to counsel does not attach until after the initiation oí 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 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
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 ease 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, 106 S.Ct. 1135, 1146-48, 89 L.Ed.2d 410 (1986); United States v. Russell, [1292]*1292411 U.S. 423, 432, 93 S.Ct. 1637, 1643, 36 L.Ed.2d 366 (1973); Hannah v. Larche, 363 U.S. 420, 442, 80 S.Ct. 1502, 1514-15, 4 L.Ed.2d 1307 (1960); Rochin v. California, 342 U.S. 165, 172-73, 72 S.Ct. 205, 209-10, 96 L.Ed. 183 (1952); United States v. Barnett, 989 F.2d 546, 560 (1st Cir.), cert. denied, — U.S. -, 114 S.Ct. 148, 126 L.Ed.2d 110 (1993). “Due process” is a flexible concept— “the processes required by the Clause with respect to the 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, 105 S.Ct. 3180, 3189, 87 L.Ed.2d 220 (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, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (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, 105 S.Ct. at 3189; Mackey v. Montrym, 443 U.S. 1, 10, 99 S.Ct. 2612, 2617, 61 L.Ed.2d 321 (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 ease 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 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/aleohol 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/aleohol 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 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/aleohol 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, 107 S.Ct. 2095, 2103, 95 [1293]*1293L.Ed.2d 697 (1987); Addington v. Texas, 441 U.S. 418, 423-25, 99 S.Ct. 1804, 1807-09, 60 L.Ed.2d 323 (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, 92 S.Ct. 495, 498-99, 30 L.Ed.2d 427 (1971); Brady v. United States, 397 U.S. 742, 756-58, 90 S.Ct. 1463, 1473-74, 25 L.Ed.2d 747 (1970); United States v. Bouthot, 878 F.2d 1506, 1511 (1st Cir.1989).
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 ease implicates Roberts’ interest in fair sentencing procedures. Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 1204-05, 51 L.Ed.2d 393 (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 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 ease, 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 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, 87 S.Ct. at 1931 (affording right to counsel at [1294]*1294critical 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, 93 S.Ct. at 2576 (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, 106 S.Ct. 477, 484, 88 L.Ed.2d 481 (1985); see also Mempa v. Rhay, 389 U.S. 128, 133, 88 S.Ct. 254, 256, 19 L.Ed.2d 336 (1967) (reviewing holding in Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (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, 68 S.Ct. at 1255). We therefore conclude that Maine’s implied consent procedure presents a substantial risk of erroneous deprivation of liberty 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 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.
[1295]*1295We are confronted with a substantially different situation in this case than the one that the Supreme Court considered in South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (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, 103 S.Ct. at 924. 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 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 eases 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 558-64,103 S.Ct. at 919-23. 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 Ne-ville case, however, the consequences involved an evidentiary disadvantage that could be rebutted, mitigated or otherwise explained by counsel at trial. The blood/aleohol test, 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 566,103 S.Ct. at 924, 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 [1296]*1296process does require that Roberts be given a reasonable opportunity to call his attorney before deciding on whether to be tested.
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 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 8-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.