(dissenting).
The State seeks a rehearing of that portion of the majority opinion of January 9, 1957, wherein it was held that “in a criminal case, where the accused is charged with being intoxicated and is asked by the State to submit to an intoximeter test to determine the amount of blood alcohol, it is the accused’s statutory right, 22 O.S.1951 § 701, to refuse to submit thereto”.
I would grant the rehearing, as the statute in question by its own terms only applies to an accused being required to give testimonial evidence against himself. Where the accused fails to give testimonial evidence, such fact may not be commented upon to the jury. But for the statute there would be no inhibition. Most of the states have no such provision. I would not extend the statute to cover a situation not specifically stated. Such would amount to legislating — a function not properly ours. The public as well as the individual, have rights that should be protected. In our enthusiasm there is, too often, a tendency to overlook this basic fact.
In view of the Ricketts, 23 Okl.Cr. 267, 215 P. 212, Ward, 27 Okl.Cr. 362, 228 P. 498, 499, and Alexander, Okl.Cr., 305 P.2d 572 cases from this court, and Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 6, 54 L.Ed. 1021, as well as other authorities, all discussed in our Alexander case, it is apparent that a motorist arrested in the act of drunken driving does not have any more right to refuse to give a sample of his breath (that would be the means of determining whether or not he would be charged with the offense for which arrested, or not charged because the test would show insufficient alcohol in his blood to support the charge, or no alcohol in his blood, which would indicate some other disability that might require medical attention) than an arrested person would have a right to refuse to be searched on the ground that what might be found might be offered in evidence against him, such as refusal to give up stolen articles found on the person, or to give up weapons that might be on the person or to disclose birth-marks, tattoos or other marks useful in identification. Varying amounts of force can be used by officers in obtaining the kinds of evidence mentioned, the amount depending upon the nature of the evidence. Many illustrations might be given where the conduct of an arrested person might bear upon the question of guilt and properly be brought to the attention of the jury. I find no valid reason for an exception here.
In search for weapons, if an accused would attempt to use a weapon, the officers in effort to protect their lives might use all force necessary for their protection. Specifically, where the arrested person accused of drunken driving would refuse to give a breath sample and actively resisted, the officers could not resort to violence, but by reason of the inapplicability of the self-incriminatory provision of the Constitution and statute to such a circumstance, it could not, under the principle developed in the authorities cited, constitute error for the arresting officer or others present, to state why they were unable to make an intoxi-meter test. To hold otherwise would be to repudiate the principle enunciated by Wig-more and followed in the many cases listed in our Alexander case.
We believe our position is supported in principle by a late case from the Supreme Court of the United States (February, 1957, published during the pendency of petition for rehearing in the within case), Breit-*1110haupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448. There a blood sample to test an unconscious person who, prior to becoming' unconscious, was driving a motor vehicle at the time of a fatal accident, was extracted, obviously without his consent and presumably against his will. This was held in a six-justice majority opinion (Warren, Black and Douglass dissenting) as not violative of the constitutional rights of the motorist. Such being the law in the case of an unconscious motorist, why in the case of a conscious motorist would it be unlawful to show that the motorist refused to permit a breath sample when he might have been in effect coerced and the sample taken without his consent? I think this court should be most careful in observing long adhered to principles, long recognized as the law of the land, and should, particularly where constitutional questions are involved, endeavor to abide by the adjudicated cases from the Supreme Court of the United States.