I am unable to agree with the reasoning and result reached in the prevailing opinion and therefore respectfully dissent for the following reasons:
The Oregon version of the model Implied Con*210sent Law provides that every motorist, by driving on the highways of this state, impliedly consents to take a breath test * * if arrested for driving a motor vehicle while under the influence of intoxicating liquor in violation of subsection (2) of ORS 483.992 or of a municipal ordinance * * ORS 483.634 (1). (Emphasis supplied.)
In the case at bar defendant was arrested for reckless driving, not for driving while under the influence of' intoxicating liquor. Therefore the provisions of the Implied Consent Law do not apply.
Eor the same reason the right to refuse the test given by ORS 483.634 (2) applies only to “* * * a person under arrest for driving a motor vehicle while under the influence of intoxicating liquor in violation of subsection (2) of ORS 483.992 or of a municipal ordinance * * ORS 483.634 (2). (Emphasis supplied.)
Of course, under the facts in the Annen case, the state, through its Motor Vehicle Division, would not be able to invoke the sanctions of the Implied Consent Law to suspend defendant’s operator’s license for 90 days for refusal to consent to the chemical test. This is so because defendant was not arrested for driving while under the influence of intoxicating liquor and therefore the preconditions specified in the statute were not followed. State v. Laplaca, 126 Vt 171, 224 A2d 911 (1966).
A motorist under arrest for, and reasonably suspected of, driving á motor vehicle while under the influence of intoxicating liquor, has no constitutional right to refuse to submit to a blood test. Schmerber v. California, 384 US 757, 86 S Ct 1826, 16 L Ed 2d 908 (1966).
*211Squarely in point is People v. Sanchez, 173 Colo 188, 476 P2d 980 (1970). In Sanches the trial court had granted defendant’s pretrial motion to suppress a breathalyzer test taken under the Colorado version of the Implied Consent Law on the ground that defendant, who was charged with the felony of causing injury while driving under the influence of intoxicating liquor, was not adequately advised of the charge against him. The Colorado Implied Consent Law is substantially identical with Oregon’s on all points involved here, including the right to refuse a chemical test. The court said:
“We conclude, that consent of the defendant was not constitutionally required under the Fourth Amendment to the United States Constitution in order to administer the breathalyzer test under the circumstances of this case.
“We observe here that the implied consent law applies only to the misdemeanor offense of driving under the influence of intoxicating liquor as defined in C.R.S. 1963, 13-5-30. This is so by reason of the qualifying language contained in the statute, which provides:
“ ‘Any person who drives any motor vehicle upon a public highway in this state shall be deemed to have given his consent to a chemical test of his blood, breath, or urine for the purpose of determining the alcoholic content of his blood, if charged with driving a motor vehicle while under the influence of intoxicating Vquor. * * *’ (Emphasis added.) 1967 Perm. Supp., C.R.S. 1963; 13-5-30 (3) (a).
The qualifying language is contrasted with that contained in the California implied consent statute, which provides:
“ ‘Anv person who drives a motor vehicle upon a highway shall be deemed to have given his consent to a chemical test of his blood, breath or *212urine for the purpose of determining the alcoholic content of his blood if lawfully arrested for any offense allegedly committed under the influence of intoxicating liquor. * * *’ (Emphasis added.) Vehicle Code section 13353 (enacted Stats. 1966, 1st Ex. Sess., c. 138, p. 634, § 1).
Under the Colorado implied consent statute, the legislature has granted to the driver the right to refuse to take the chemical test, which refusal must he honored by the arresting officer. Such right of refusal, of course, is subject to the sanction of suspension of one’s operator’s license.
“Inasmuch as the statute does not extend to felonies, such as defendant is here charged with, he could not claim any statutory right to refuse to take the breathalyzer test that was here administered. Since consent is neither statutorily nor constitutionally required, it is immaterial whether the defendant was inadequately advised or whether his consent was uninformed.
“The ruling is reversed.” 173 Colo at 192-93, 476 P2d at 982. (Third Emphasis ours.)
State v. Fogle, 254 Or 268, 459 P2d 873 (1969), which is chiefly relied upon in the prevailing opinion, is not applicable here for the following reasons:
(1) In Fogle defendant was arrested for driving while under the influence of intoxicating liquor. lie was given a breath test with his consent pursuant to the provisions of the Implied Consent Law. Here defendant was arrested not for driving while under the influence of intoxicating liquor, but for reckless driving. His blood was not withdrawn under the provisions of the Implied Consent Law.
(2) Fogle was decided on the narrow issue of whether the breathalyzer equipment used had been tested in the manner prescribed by the Implied Consent *213Law. The issue involved in the case at bar was not raised in Fogle (in fact it could not have been raised) because Fogle was arrested for driving while under the influence of intoxicating liquor and consented to the breath test.
Summarizing the reasons for my dissent, the Implied Consent Law is a special statute dealing only with persons arrested for driving while under the influence of intoxicating liquor. The sole purpose of this statute is to provide a procedure for suspending the operator’s license of those motorists who are properly arrested for driving while under the influence of intoxicating liquor and who refuse to take a breath test. Its application should be limited to its express terms. The basic premise of the Implied Consent Law is that the consequences which follow when a motorist refuses to take the breath test are separate and distinct from all other types of legal proceedings. As the court pointed out in Severson v. Sueppel, 260 Iowa 1169, 152 NW2d 281 (1967), acquittal of the criminal charge of operating a motor vehicle while intoxicated did not preclude revocation of a driver’s license for refusal to submit to chemical sobriety test, since the revocation proceeding was a civil matter independent of the criminal prosecution and the outcome of one action was of no consequence to the other.
It is my conclusion that the requirement of consent is applicable only to the procedures provided in the Implied Consent Law itself. Thus, the Implied Consent Law does not, for example, prevent law enforcement authorities from withdrawing blood from an unconscious person for use in a negligent homicide prosecution, as this court held, quite properly, in State v. Greenough, 7 Or App 520, 491 P2d 630 (1971), Sup Ct review denied (1972).
*214As the Colorado Supreme Court held in Sanches, the right to refuse a chemical test under the Implied Consent Law applies only if a person is arrested for driving while under the influence of intoxicating liquor. Here defendant had no • statutory right to refuse the test inasmuch as he was arrested for reckless driving. Likewise the statutory prohibition against introducing evidence of a driver’s refusal to submit to any kind of chemical test has no application because defendant was arrested for reckless driving.①
For the reasons I have set forth, it seems to me that the result reached in the prevailing opinion represents a misapplication of the Implied Consent Law, is inconsistent with the rationale of our holding in State v. Greenough, supra, and is not required by State v. Fogle, supra. I would affirm the decision of the trial judge. .
The model law and the laws oí 13 states providé that a motorist’s refusal to allow a chemical test' cári' be used as evidence. Nine states, including .Oregon and Colorado, have laws expressly prohibiting an evidentiary use of a motorist’s refusal to submit to a chemical test in all or certain proceedings against him. Our law provides that this refusal.cannot be shown in any other type, of proceeding. The Colorado version provides that the refusal cannot be shown in a criminal prosecution for driving while under the influence of intoxicating liquor. Traffic Laws Ann 642, 643, § 11-902.1 (1972).