concurring in results:
While I concur in the result, I must respectfully express my disagreement with part of. the majority’s reasoning. I would not require that the prosecution take on the burden, as part of its ease-in-chief, of affirmatively showing in the record the consent of a conscious motorist who did in fact submit to having blood samples drawn from his body in accordance with the Implied Consent Act.
Prior affirmatively manifested consent is not required by the constitution, where the arresting officer has probable cause. See Schmerber, supra. Therefore, no constitutional right is protected by the legislative requirement that no samples be drawn where it would be done without the consent of the motorist. Rather, this requirement would protect against a potentially dangerous physical confrontation between law enforcement and medical personnel, and a motorist believed to be intoxicated; possibly the legislature also seeks to spare one the indignity of a physical intrusion into his body without a warrant and despite his objection. In my opinion, these purposes are not served by mandating in the Implied Consent area the kind of requirements imposed in situations with constitutional overtones.
The majority’s rationale extended only slightly would require the giving of Miranda-type warnings to require that the “consent” and submission to the samples being drawn is voluntary: For instance, advise arrestee that 1) he has a right to a contemporaneously drawn blood sample for testing by a physician or other qualified person of his own choosing (47 O.S.Supp.1975 § 752); 2) that if motorist refuses, no test will be given (47 O.S.Supp.1975 § 753), although 3) his privilege to drive may then be lost (47 O.S.Supp.1975 § 754); 4) that any test will be of blood or breath, at motorist’s option (47 O.S.Supp.1975 § 751).
Moreover, the quality of any such affirmative consent would always be subject to challenge, since the prosecution must concede that reasonable grounds existed for believing arrestee was intoxicated at the time consent was given, intoxication also presumably established by the test results.
The implied consent situation is unique in many respects, and I do not believe that the majority reasoning on this point furthers the proper functioning of the statute.