(concurring).
I dissented in Commonwealth, Department of Public Safety v. Craig, Ky., 471 S.W.2d 15, because I believed then, and still believe, the law requiring a blood-alcohol test violates both the Kentucky and Federal Constitutions. The large number of appeals coming to this court subsequent to that opinion has convinced me that I was right. The public highly resent this procedure. I am convinced their resistance springs from a resentment to the degrading process of having a police officer require them to undergo the embarrassment of having their blood drained and analyzed as if they were common laboratory animals. In short, the process violates the principles of common human dignity.
As stated in my dissenting opinion in Craig, I am in sympathy with any program that will assist in removing the drinking driver from the highway and if the blood alcohol test were the only method available, I might be more sympathetic toward it. The blood-alcohol test is not the only method available. The breathalyzer is an accurate and accepted method of checking for sobriety. It is more humane in the administration and does not have the unconstitutional features of the blood-alcohol test. In the use of the breathalyzer, there is no invasion of the subject’s body. The air that he exhales is a product resulting from normal body function. The capturing of this air and its analysis does not involve an invasion of the body itself. It is my opinion that the breathalyzer is more acceptable factually and constitutionally than the blood-alcohol test.
Many thoughtful persons are concerned with what appears to be a headlong rush into a police state. While some courts still appear to be upholding fundamental constitutional rights, it would appear that others are ignoring them altogether. This past week the Supreme Court of the United States struck down the practice of federal agents’ tapping telephone wires. This would appear to be a good sign and in line with the philosophy laid down by the Supreme Court many years ago in Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 296 L.Ed. 746. In this case the Supreme Court held a defendant in a criminal prosecution for failure to pay import duties on goods shipped into the United States could not be forced to produce incriminating papers, for to do so would violate his rights under the 5th Amendment. While the Supreme Court has set this tone, lower federal courts and many of the state courts seem to be driving hard in the other direction. For the student who is interested in just how far matters have gone, see the *101American Law Reports, Later Case Service Supplement, 25 ALR 1370-1379, where the following cases appear:
“Physical examination of defendant, and removal of narcotics from his rectum, involved no violation of privilege against self-incrimination, was not unreasonable search and seizure, and did not deny due process. Blackford v. U. S. (C.A.9, Cal.) 247 F.2d 745.
Self-incrimination privilege is limited to giving of oral testimony, and is not violated by use of urine specimen, in criminal prosecution, to show whether defendant was under influence of alcohol at the time specimen was given. U. S. v. Nesmith (D.C.Dist.Colo.) 121 F.Supp. 758.
Accused in rape case was not forced to give incriminating evidence against himself when blood sample, tissue scrapings, and saliva samples were taken and used in evidence. Brent v. White (D.C.La.) 276 F.Supp. 386.
Admission in sodomy prosecution of evidence of smears and slides taken from defendant’s genitals did not violate defendant’s immunity to self-incrimination or right as against unreasonable search and seizure. People v. Morgan, 146 Cal.App.2d 722, 304 P.2d 138.
In narcotics prosecution, evidence established that heroin capsules which accused spat out when police officer seized him by the throat were not obtained as result of unreasonable search and seizure in violation of accused’s privacy, due process, and self-incrimination rights. People v. Sanches, 189 Cal.App.2d 720, 11 Cal.Rptr. 407.”
The foregoing cases speak much more eloquently than I possibly can as to how far the matter has gone. I humbly and respectfully suggest we pause and ponder where we have come. When an accused charged with failure to pay import duties cannot be forced to disclose discriminating papers, as such disclosure would violate his rights under the 5th Amendment, it is amazingly strange to me that one accused of selling dope, committing rape, or driving while intoxicated may have his blood let, genitals scraped, rectum probed, may be forced to urinate into a bottle and, if necessary, choked until he spits up the evidence. The cynics in our society would say this conclusively shows that there is one set of laws for the affluent businessman and another for the rest of us. Thanks be that I am not a cynic. I am proud to live in a land where my telephone calls cannot be monitored, nor my private correspondence scrutinized. Maybe someday my government will see fit to protect my genitals, rectum, bladder, blood stream and esophagus. As I remain of the opinion that the blood-alcohol test violates Sections 10 and 11 of the Constitution of this state along with Articles 4 and 5 of the Constitution of the United States, I concur in the results reached by the majority today.