(dissenting).
Reluctantly, I dissent. The main opinion-is based, not on the unconstitutionality of the statute, but upon its stupidity, resulting in our decision that the intent of the legislature was not as intended, under an act which is not ambiguous, but clear as a bell. I wonder if the judicial branch of the government has the legislative authority to vacate an alleged silly legislative act on the ground that we think it is silly. Many legislatures seemingly have passed silly legislation in the minds of many people, but this court has not, so far as I know, condemned such legislation for such reason alone.
I concede that on the surface it appears a little absurd to conclude that one that has not been arrested must succumb to a blood test, while he who is placed under arrest is immune from such treatment. However, there is a counterpoint to such a conclusion. If the person examined submits to the test required, he may prove himself innocent of the charge that imminently could be filed. If he is pretty sure his blood test will show him to have been drunk, he may prefer to be arrested, and refuse the test, thus giving him time to exonerate himself by the physiotherapy of passage of time.
I can see a purpose in the statute: If a person, after arrest, refuses to take the test, such refusal might be admissible in *409•evidence tending to prove his guilt. In the case of the unarrested person who refuses the test but is required to submit thereto, his refusal has little or no weight as evidence, since the result of the test is the only thing pointing to guilt or innocence. Besides, under the statute he has consented to the test by using the highways, — just as a nonresident using our highways consents that the Secretary of State shall be his agent upon whom service of process may be accomplished in a civil suit.1
The fact that an arrested person need not take the test, but his unarrested brother has to submit to it, may raise a meritorious point that the statute unconstitutionally may be discriminatory. But the main opinion is not bottomed on such a premise.
The only question involved in this case is whether permission to use highways in a motor vehicle will justify a requirement to take a blood test at the request of a police officer if there is reason to believe there has been an overindulgence in the consumption of liquor by someone who is particeps to a traffic incident. The main opinion does not treat this area of the law, but simply says the legislature did not mean what it said.
Although the main opinion discounts Schmerber v. State of California2 because there was no statute akin to ours and the person involved was under arrest, such fact situation does not devour the meat of the decision. Consequently I believe the Schmerber case is apropos here.
If the main opinion had said this legislation was unconstitutional because it violated such and such section or sections of the state or federal constitutions, and show why and cite cases in support thereof I might, if convinced, go along, — -but otherwise, no.
. Title 41-12-8, U.C.A.1953.
. 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).