dissenting.
The majority opinion holds: “The Implied Consent Law, enacted in 1971, is constitutional.” That holding compounds the obvious legislative confusion apparent in the 1971 and 1972 attempts to revise statutes dealing primarily with drunken driving. It places the stamp of judicial approval upon an involved and confused statutory structure.
The 1971 Legislature repealed the former provisions of the Implied Consent Law which provided for a civil revocation procedure before the Director of Motor Vehicles for refusal to submit to a chemical test, formerly sections 39-727.08 through 39-727.12, R. R. S. 1943. At the same time section 39-727.03, R. R. S. 1943, was converted into a criminal statute which made refusals two separate crimes, and provided that a refusal to submit to a blood, breath, or urine test was to be punished “in the same manner” as a violation of the drunken driving statute.
The defendant here was charged, convicted, and sentenced separately on - counts for drunken driving and for refusing to submit to a chemical test. During the time the 1971 laws were in effect, there was no civil proceeding of any kind for revocation of a driver’s license for refusal to submit to a chemical test. The repeal of those previous provisions also repealed the statutory requirement that if the test was refused, it *421should not be given. In the absence of that provision, Schmerber v. California, 384 U. S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908, was obviously controlling. In 1971, the State could compel an arrested driver to submit to such a test whether he objected or not.
In this context, section 39-727.03, R. S. Supp., 1971, made it a crime to refuse to consent to a test which legally required no consent. The State could make the test whether the request was refused or not. Although the refusal was gratuitous and could be wholly disregarded by the State, nevertheless the statute provided that any person who refuses to submit “shall be punished in the same manner” as if convicted of drunken driving. That punishment included mandatory fines of $100 to $300; confinement ranging from less than 3 months in jail to 1 to 3 years in the Penal Complex; and included as an automatic provision, a revocation of driver’s license for periods of 6 months to a year after discharge from confinement or payment of fine. Obviously, the penalty for refusing a test which could be given anyway had no relationship to the seriousness of the crime. Neither did it prevent the imposition of duplicate penalties for a drunken driving conviction.
The original purpose of the implied consent laws was to encourage persons suspected of driving under the influence of alcohol to submit to chemical tests by making a refusal result in the loss of a driver’s license. The 1971 Nebraska statutes completely altered that situation and created a separate criminal offense, related to but entirely separate from the offense of drunken driving, and also removed the statutory proviso that if a test was refused, it should not be given. The statute also failed to specify whether a conviction for either a refusal or for drunken driving would eliminate the other; or whether refusal to take a chemical test should be treated as a lesser included offense in a prosecution for drunken driving; or whether charges could be filed separately.
*422The 1972 Legislature substantially reenacted the civil revocation statutes but new numbers were put on them and they are now sections 39-727.16 to 39-727.20, R. S. Supp., 1972. The Legislature also amended section 39-727.03, R. S. Supp., 1971, by making a more definite separation of the crime of refusing a preliminary breath test and the crime of refusing after arrest. It also provided that upon refusal the person not only “shall be punished in the same manner” as a violation of the drunken driving section but also “shall be subject to the administrative revocation procedures of the Director of Motor Vehicles.” The reenactment of the old administrative revocation procedures also brought with it the revival of the statutory requirement that when a test was refused, “the test shall not be given.”
The practical effect of the 1972 act was to revive the Implied Consent Law which had been in effect prior to 1971, and couple with it the two new crimes for refusal which were created in the 1971 law for the first time. Under the provisions of the 1972 law, for one occasion of suspected and actual drunken driving, a person may find himself convicted of three crimes: (1) The misdemeanor offense of refusing a breath test before arrest; (2) refusing a chemical test after arrest; and (3) the principal crime of drunken driving, hi addition, for refusal after arrest he will have his driver’s license revoked for 1 year by the Director of Motor Vehicles. Two of the three crimes also provide automatic license revocations as well as fines and possible jail or prison sentences. Under the current 1972 law, the punishments and penalties for a refusal to take a chemical test after arrest are greater than the punishments and penalties for drunken driving! The 1972 legislation serves to further complicate an already complicated and confused statutory structure, but those statutory provisions are not presently before us. It is nevertheless an appropriate time to call the attention of the Legislature to the problem.
*423It is extremely important that drunken drivers. he taken off the highways. It is equally important that the removal be accomplished validly and j.ustly.