concurring specially:
I agree with the majority opinion holding that no arrest of the defendant took place; that A.R.S. § 28-691(D) (implied consent law) is therefore not involved; and that a blood sample obtained prior to arrest has recently been held to violate the fourth amendment to the United States Constitution in United States v. Harvey, 701 F.2d 800 (9th Cir.1983). This court therefore decides correctly that the blood sample must be suppressed as evidence.
Whether the decision is correct depends upon whether United States v. Harvey has correctly interpreted Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) to require an actual arrest prior to taking the blood sample in lieu of mere probable cause to arrest. While the opinion in Harvey rejects the latter, it is apparently the only United States Court of Appeals decision to reach the question. State courts are divided on the issue. See 2 LaFave, Search and Seizure § 5.4(b); Annot. 14 A.L.R. 4th 690; for a state court decision allowing in evidence a blood sample taken upon probable cause without arrest, see State v. Aguirre, 295 N.W.2d 79 (Minn.1980).
There is another aspect of the case which prompts my separate comment under our decision. A person arrested for an offense committed while driving intoxicated can refuse a blood test, and if one is taken involuntarily it may not be introduced as evidence at trial. This is a result of A.R.S. § 28-691(D) (quoted in the majority opinion) which provides that a person so arrested may refuse such a test, and if he does so, none shall be given.
There is produced from this a law enforcement dilemma: if the suspect is arrested he may refuse the taking of a blood sample, and if one is taken it will be suppressed as evidence under the implied consent law. If the suspect is not first arrested, any blood sample taken will be suppressed as evidence as a fourth amendment violation under Schmerber v. California. The net effect in Arizona is to outlaw any involuntary taking of a blood sample except the limited instance where the suspect is “dead, unconscious or who is otherwise in a condition rendering him incapable of refusal.” In the latter situation consent to withdrawal of the sample is deemed given. See A.R.S. § 28-691(C).