concurring.
In concurring in the decision of this case I wish to set forth the following considerations which in my opinion justify the additional ruling which must be established, and to which I will refer below.
There is no factual evidence in the record of the trial coürt nor in that of this Court, that defendant refused to submit to an analysis of his blood or urine: Neither is there any stipulation of the parties in this sense. It is true that in the decision which we reviewed, the trial court stated that the justice of the peace , who determined probable cause seized defendant’s license “when the latter refused to submit to the *800chemical analysis which was required.” We ignore the source because the stenographic record wherein the incident was discussed respecting the return of the license by reason of unconstitutionality of the legal provision by virtue of which it was taken from him does not contain any statement on that score. However, in the petition for certiorari, as well as in his brief to this Court, the Solicitor General sets forth that defendant refused to have a blood or urine sample taken, and starting from that situation of facts he discusses the pertinent issues. Defendant has neither accepted nor denied those statements of the trial court and of the Solicitor General, and the fact remains that his license was actually taken from him when probable cause was determined. I presume, therefore, that that was what happened, for otherwise, if there would have been no refusal to submit to the analysis the trial court could have disposed of the incident without having to touch on the question of constitutionality.1
But before I proceed I have seen fit to dispel a doubt which has lurked in my mind as to the interpretation of the legal provision attacked herein as unconstitutional, which is § 5-804 (b) of Act No. 141 of July 20, 1960 — Vehicle and Traffic Law — after the amendment to said section by Act No. 94 of June 21,1961. Upon evaluating the constitutional contention to be decided, there is a fact which is to me of fun*801damental importance, which goes to the very core of the problem, and that is whether this section requires that the judge who determines probable cause should immediately seize the license in all cases in which he determined that a vehicle has been operated while its driver was intoxicated, although the arrested person has not made any objection to submit to the chemical analysis, or whether it authorizes such seizure only in those cases in which, upon determining probable cause, the arrested person has refused to submit to the examination. Further on I will set forth the importance which each interpretation has in my opinion.
Section 5-804 of the Vehicle and Traffic Law, which the legislator entitled “Procedure to be followed when arrested person refuses to submit himself to the chemical analysis,” provided in its paragraph (a) that any person held under the charge of driving a vehicle under the influence of intoxicating liquor may refuse to submit to the chemical analysis. According to paragraph (b) if the arrested person refuses to submit to the analysis, it shall not be made, and he shall be taken before a judge. The judge shall take the sworn testimony which the aforesaid paragraph mentions including those of any other interested persons or who witnessed the person arrested driving or operating the motor vehicle under the influence of intoxicating liquor, and if he found probable cause, he shall order the filing of the corresponding complaint or information and he shall issue an order of commitment, and shall forthwith seize his driving license. According to paragraph (c) of § 5-804, at the time of the trial the judge shall order the suspension of the license for a term of not more than two years whenever he determines from the evidence that defendant was not justified in refusing to submit to the chemical analysis.
Section 5-804 as originally approved in 1960 does not leave the slightest doubt that the seizure of the driving license in the act of determining probable cause lay only and ex*802clusively in those cases in which the arrested person Had refused to submit to the chemical analysis. But due to the amendment to paragraph (b) of § 5-804 of Act No. 94 of 1961, the pertinent part then provided as follows:
“In all cases, if the judge considers there exists probable cause of the commission of the offense by the arrested person, he shall issue the proper order of commitment and shall forthwith seize his driving license.”
As in the original provision, this legislative expression is part of § 5-804 itself, wherein the lawmaker established the procedure to be followed when the arrested person refuses to submit to the analysis. In other words, the doubt arose from the phrase “in all cases” which appears with the amendment of 1961, as to whether the intention of the lawmaker was that the license would be seized in all cases in which the judge determined probable cause for driving while intoxicated, whether or not the arrested person refused or submitted to the chemical analysis, or if, on the contrary, it would be seized only in cases of refusal, as in the original provision. The legislative history of Act No. 94 of 1961, which was H. B. 270, the Report of its Juridical Committee, and the legislative debate during the process of its approval, have dispelled every doubt I had to that effect, and it is my opinion that even after the amendment of 1961, the seizure of the license upon determining probable cause was authorized, as in the original Act, only in those cases in which the arrested person has refused to submit to the chemical analysis. The meaning of the phrase “in all cases” and the intention of the legislator became perfectly clear to me from the legislative process.
The main objective of H. B. 270 was to give the prosecuting attorney the right to intervene in the initial stage of determining probable cause because it had already been provided that these cases of driving while intoxicated would be prosecuted before the superior court and not before the district court. House Bill 270 amended paragraph (e) of *803§ 5-808 of the Act of 1960 to grant the prosecuting attorney as well as the judge, and police officers, authority to require the arrested person to submit to the analysis. Paragraph (h) of the aforesaid § 5-803 was also amended to the effect that the result of the chemical analysis would be sent to the corresponding district attorney instead of to the office of the clerk of the district court. House Bill 270 also amended paragraph (b) of § 5-804 to include the prosecuting attorney, besides the judge, as a person to whom the arrested person who has refused the analysis may be taken, thereby authorizing the prosecuting attorney as well as the judge, to make the investigations and take the sworn statement. It eliminated the provision which imposed the obligation upon the judge to order the filing of the complaint or information.
In the Report of the Juridical Committee of the House, respecting H. B. 270 it was stated:
“Section VIII of the Vehicle and Traffic Law provides the procedure for investigations in cases in which the persons arrested for the crime of driving or operating a vehicle under the influence of intoxicating liquor refuse to submit to the chemical analysis of their breath, blood or urine.
“Respecting the aforesaid procedure your Committee believes that prosecuting attorneys, who have by law the duty to make and sustain the charges in the Superior Court, should also have the power to require the arrested persons to submit to whichever chemical analysis of their blood, breath or urine, to receive the reports on the results of said analyses, and to take the sworn statements to which reference has been made.
“House Bill 270 provides that in cases where a prosecuting attorney takes such statements, if from the examination of the witnesses who testified it appeared that thére was a violation of the provisions of the aforesaid Section VIII and that there is sufficient cause to believe that the arrested person is guilty of such violation, the prosecuting attorney shall submit to a judge the evidence which he had thus obtained so that the latter may determine probable cause of the offense. It also pro*804vides that probable cause shall be determined in all cases by the judge, who shall issue the corresponding- order of arrest, in effect, and he shall forthwith seize the arrested person’s driving-license.” (Italics ours.) Journal of Proceedings (House of Representatives), May 16, 1961, pp. 1250-1251.
Any remaining doubt as to the meaning of the phrase “in all cases” and that the original legislative intention to the effect that the license is seized only in cases where the driver refuses to submit to the analysis was not altered, is definitively dispelled with the reading of the debate of House Bill 270 in the hemicicle of the Senate. Said phrase was used to include those cases in which the judge intervenes as well as those in which the prosecuting attorney intervenes, since the latter is now authorized to do so. Journal of Proceedings (Senate), May 25, 1961, pp. 1605-1607.
For the purposes of evaluating the constitutional contention presented, the clarified fact is to me of unique importance, since the drastic act of seizing the license at the stage of determining probable cause would not primarily carry out the legislative intention of giving the public maximum protection by “freezing” and by immediately drawing from circulation a driver against whom probable cause has been found of driving while intoxicated. That it does not guarantee such immediate protection for the public is shown by the fact that the advanced stage of intoxication under which an arrested person had been driving is immaterial, because if he submits to the chemical analysis, the license is not seized immediately, and after furnishing the corresponding bail, that person, hours later, may again be driving a motor vehicle. The fact that the license may be seized merely because the arrested person did not submit to the chemical analysis destroys, in my opinion, the fundamental ground warranting such a strict and drastic measure, since as I have stated, the seizure of the license in such cases does not guarantee an immediate protection for the public. This is more so,' after considering the fact that if the arrested person ac*805cepts or refuses to submit to an analysis is of little value at the stage of determining probable cause because the judge at that moment lacks the benefit of the result of said analysis.
Likewise, notwithstanding the foregoing, I am not in a position to hold that the provision challenged herein, which authorizes the immediate seizure of the license is wholly devoid of reasonable basis. It has the desirable effect of discouraging the refusal to submit to the analysis, where there is no justification, considering that the analysis may later be useful to the State in the trial for the crime of driving while intoxicated.
In harmony with the foregoing it is clear to me that the immediate seizure of the license in such cases has a meaning and the effect of a punishment for refusing the analysis when it has not yet been determined whether or not there was valid justification for the refusal.
It is the duty of the courts to make every possible effort to sustain the constitutionality of a statute. On the other hand, it is also the duty of the courts, where public interest collides with individual interest of the citizen, to try to find the formula for the reconciliation of those interests, protecting both and avoiding, whenever possible, that one destroys the other. With these criteria in mind, and considering that in those cases which are prosecuted in the superior court, a prosecuting attorney has up to 60 days to prefer charges and the court has an additional period of 4 months to hold the trial during the permissible prescriptive term, besides the justified delays which may take place, before adjudging the fact of whether or not there was justification on the part of the arrested person to refuse to submit to the analysis, I understand, that for the due protection of that defendant, among other guilty ones, who in the long run may be innocent of the charge of having refused to submit to the analysis without justification, the Court should give an order to the Superior Court to hold a hearing as soon as a defendant *806from whom a license has been taken, so requests, even when the information has not yet been filed, in order to determine, after hearing the parties and in the light of the evidence introduced, whether or not the defendant was justified in refusing to submit to the analysis, and if the Superior Court decides that he was, his license should be returned immediately, leaving pending the other proceedings on the commission of the crime to be disposed of at the proper time. I believe that the aforesaid rule is necessary to liberate the provision of law attacked herein as unconstitutional from a sense of oppression and injustice in the case of an innocent party. I shall not enter into a sterile discussion as to whether the license to drive motor vehicles is a right or a privilege, although nobody, of course, is born with the natural right to be a driver, but it would be shutting our eyes to our present reality if we were to ignore that the enjoyment of the authority to drive motor vehicles, once such right has been legally obtained, does not have today the same meaning which it might have had when the automobile was merely used for the family’s pleasure on holidays.
Upon reversing the judgment I would instruct the trial court that if that license is still seized, it should immediately hold a hearing to determine whether or not there was justification to refuse to submit to the chemical analysis, if that was a fact, and if the matter had not been already definitively disposed of.
In a brief before tbe trial court defendant set forth the facts which he later reproduced in the brief to this Court as follows: “Defendant (opponent herein) Juan Carrión Diaz, 42 years of age, married, with children, and engaged as a bus driver, lawfully appeared in person at police headquarters in Caguas in the Sunday morning of March 11, 1962, for the purpose of requesting information as to a complaint filed by a neighbor against him. From there he was taken to jail after being charged with two offenses of disturbance of the peace: one committed' on 'the way out to Gurabo’ and the other 'in the detention room of police headquarters of Caguas,’ and also for the offense of driving while intoxicated. (District Court, Criminal Nos. 62-508 and 62-523; Superior Court, Criminal No. N-62-98). Moreover, he was stripped of his working tools: the driving license, by virtue of the procedure provided by § 5-804 of Act No. 141 of I960, and it was not returned to him in spite of his sincere and repeated protest.”-