I concur in the result reached by the majority opinion. I cannot agree that In re Newbern (1959), 175 Cal.App.2d 862 [1 Cal.Rptr. 80], requires this result since the basic rule of that ease is merely that he is entitled to “a reasonable opportunity to attempt to procure a timely sample,” which was afforded him in this case. However, the next logical step in the development of that principle is to afford each side an opportunity to take a blood sample and without the other side being able to delay the test. The majority opinion gives to the defendant full protection and at the same time assures to the prosecution either a prompt test or the right to an instruction to the jury as to the infer*884enee which may be drawn from a refusal. This clarification of the rights of both sides is a forward step in the development of the law.