(concurring).
The writer concurs in the views of Justice Dixon that the constitutionality of the statute is before us by virtue of our appellate jurisdiction. The ordinance in question is also before us by virtue of La.R.S. 13:3712, entitling us to take judicial notice of it.
I further concur in Justice Dixon’s belief that the judgment of the district court should be affirmed because, on the merits, the statute is-unconstitutional.
In' explanation, I should state that, in 'my opinion, an enactment may validly permit the ■ pólice to stop an automobile or to ask the driver of one to submit to testing of his breath, in order to determine the aleoholic content of his blood. On the .balance, the public interest justifies the invasion to-this extent of the individual’s privilege to use the highways, at least when he has just been involved in a collision or a moving .violation of traffic law. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Also, that an individual is required under these circumstances to submit to the test, does not necessarily ■ involve an invasion of his privilege against self-incrimination. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). See also State v. Dugas, 252 La. 345, 211 So.2d 285 (1968).
The unconstitutionality, in my opinion, lies in providing a criminal sanction of imprisonment or fine for the simple refusal of a person to submit to an ex parte nonjudicial request for him to submit to such testing. The state does not have an unqualified right to punish one who asserts a right not to undergo such a test: An individual in free America is not subject to jailing simply for his refusal to obey a street order by an official to undergo a testing of his person. To make this refusal subject to criminal penalty, without reference to whether the ex parte non-judicial order is reasonable or not, in my opinion offends due process guarantees of the .state and federal constitutions. ..... ,
■ A refusal to undergo testing at the scene of the accident may well create a presurnption that the results of the testing would be *35adverse, and such refusal (not founded upon any Fifth Amendment right) may be admissible against the refuser in subsequent proceedings. State v. Dugas, 252 La. 345, 211 So.2d 285 (1968). Also, by exercising the privilege of driving upon the roadways of city and state, a driver may probably be required to give an implied consent to testing of the nature here involved; subject, if he fails to submit, to some privilege-related sanction, such as the temporary detainer of his license by the investigating officer and, after hearing, the suspension of his license.
For these reasons I respectfully concur.