(dissenting).
For the following reasons, I dissent: The entire conflict over the proper interpretation of § 41-6-44.10 could be averted by the adoption of a standard procedure whereby anyone refusing to take a chemical - test would execute a form setting forth the refusal. A refusal to execute such a form could be deemed tantamount to an express refusal and could be so noted in the officer’s sworn report. Thus, the ever-increasing *1340line of appeals concerning whether the actions of a driver constituted a refusal could be diminished, and a uniform objective standard would be established. All statutory references are to U.C.A.1953, unless otherwise indicated.
The majority opinion engages in rhetorical hyperbole to support an untenable position.1 The majority opinion is predicated on a false premise that the implied consent law is a fiction which may now be discarded, because the feared constitutional infirmities which compelled its usage have been resolved. Thus, in construing § 41-6-44.10, the majority utilizes the rule of expediency rather than the legislative intent as expressed in the statute. The implied consent law has been convoluted into the implied refusal law whereby no defendant can be required to submit to. any chemical test without his consent.2
A survey of the article in the 1967 Utah Law Review 168, cited by the majority, reveals the infirmity in the reasoning of the majority opinion. The article states that the “implied” consent statute was developed to circumvent the need for obtaining consent.
. This consent, of course, is a fiction. Failure' to submit to a test is a ground for suspension of the driving license . . .3
In my view, it is unfortunate the majority adopts the “shock” language of the Law Review article, which styles the implied consent a fiction. Such language is inaccurate, and serves only to deflect the mind from analysis. It is, in fact, a condition which attaches to the privilege of driving an automobile in Utah for resident and nonresident alike.
A fiction is that which is opposed to fact or reality. Certainly, the legislative enactment makes it a fact; and in reality, it is a proper exercise of police power for the protection of the public.
The implied consent statute serves its legitimate purpose as does our 41-12-8, and in the same fashion. In the latter statute, a nonresident et al., by operating a motor vehicle over the highways of this state, resulting in personal or property damage, “shall be deemed” to have appointed the Secretary of State as his attorney to accept service of process. In reality, this is also a fact, because the legislature has said it is.
The article cites Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), and then continues: ,
In Schmerber, the court in the absence of implied consent legislation, upheld the taking of blood for chemical analysis from a person arrested for drunken driving, despite the driver’s refusal to consent to the taking. The court held that the privilege against self-incrimination is not violated when “physical” evidence such as blood is compelled from a defendant, that there is no unreasonable search and seizure if the taking is incident to a valid arrest and is done in a medical environment, and that due process is not violated in the absence of outrageous police methods in the taking.
So long as Schmerber remains good law and state courts interpret state constitutional provisions as Schmerber interprets the federal provisions, there is no apparent need for implying consent of drivers to chemical tests. Thus it would appear that Schmerber has negated the need for implied consent legislation in most states. A few state courts, however, have given a more liberal interpretation to state constitutional provisions, either extending the privilege against self-incrimination and thereby prohibiting the taking of “physical” evidence, or requiring the con*1341sent of the defendant for a legal search and seizure involving body fluids. Also, it is entirely possible that the five-to-four decision in Schmerber may be overruled. In either situation, body fluid tests would be excluded in the absence of consent. Therefore, implied consent laws would appear to be a means of avoiding constitutional obstacles and should be enacted as the only effective way to obtain scientific evidence.4 [Emphasis supplied.]
The need for a viable implied consent statute, in Utah has not been negated by Schmerber because of the difference in language in Article I, Section 12, Constitution of Utah, with the Fifth Amendment of the United States Constitution. Article I, § 12, Constitution of Utah, provides:
. The accused shall not be compelled to give evidence against himself; a wife shall not be compelled to testify against her husband, nor a husband against his wife, . . . [Emphasis supplied.]
The term “evidence” is obviously broader than the testimonial privilege of the Fifth Amendment; such a conclusion is compelled by the use of the term “testify” in contrast to the term “evidence” within the same sentence in § 12 of Article I. It is, therefore, imperative that § 41-6-44.10 be interpreted as written to avoid constitutional obstacles.5
What is the proper construction of § 41-6-44.10? Subdivision (a) provides that any person operating a motor vehicle in this state shall be deemed to have given his consent to a chemical test. Subdivision (c) provides that any person who is dead, unconscious, or in any other condition rendering him incapable of refusal to submit to a chemical test shall be deemed not to have withdrawn his consent.
Subdivision (b) provides:
If such person has been placed under arrest and has thereafter been requested by a peace officer to submit to any one or more of the chemical tests provided for in subsection (a) of this section, and refuses to submit to such chemical test or tests, such person shall be warned by a peace officer requesting the test or tests that a refusal to submit to the test or tests can result in revocation of his license to operate a motor vehicle. Following this warning, unless such person immediately requests the chemical test or tests as offered by a peace officer be administered, no test shall be given .
Under the mechanics established by the legislature, any motorist operating a motor vehicle in this state has given his consent to a chemical test. This consent is not withdrawn if the motorist is unconscious or in such a condition that he cannot communicate a refusal. There are two conditions precedent to a withdrawal of consent: first, the arrested motorist must communicate his refusal to the peace officer; second, the peace officer must reiterate the consequences of this refusal, viz., revocation of the operator’s license. Without this sequence mandated by statute, consent to a chemical test is not withdrawn.
The most pertinent definition of the term “refuse” within the statutory context is “to show or express a positive unwillingness to do or comply.” “Refusal” means a “rejection of something demanded, solicited, or offered for acceptance.”6
*1342The implied consent statute of Utah should be contrasted with Oregon’s, wherein O.R.S. § 483.636 requires the motorist “expressly consents” to a blood, urine, or saliva test.7 In Utah, until a motorist shows or expresses a positive unwillingness to take the test, his consent is not withdrawn, viz., he has not refused or revoked his prior consent. Idaho, in three cases, has attempted to define a refusal within the confines of its implied consent law. In State v. Bock,8 the court compared the Idaho statute with North Dakota’s, N.D.R.C. 1953 Supp. 39-0801, the latter provided “no defendant shall be required to submit to any chemical test without his consent.” The court stated:
. Our statute is different. By operating a motor vehicle in this state, the defendant is ‘deemed to have given his consent to a chemical test.’ The only way he can withdraw that consent is to expressly refuse the test. So under our law, if he neither refuses nor consents, expressly, the test may be .made.
In Mills v. Swanson,9 the issue was whether, under the facts of the case, the silence of the motorist in response to a request to submit to a chemical test constituted, as a matter of law, a withdrawal of the statutorily granted consent to such a test. The court observed that the motorist did not at any time expressly refuse to take the test. The court stated:
. Expressly means in direct or unmistakable terms. [Citations] Expressly means declared and not merely left to implication. [Citations] Thus where an individual has neither refused nor consented, but for some reason within the discretion of the officer, the test is not administered, it cannot be said that there was an express refusal to take the test.
Finally, in Mills v. Bridges,10 the court clarified its meaning:
. Although this court held in Mills v. Swanson [Citation] that the refusal must be express in the sense that it cannot be left to the inference whether defendant has consented or refused, here there is no doubt but that appellant was refusing to' take the breath test. The issue is whether the qualification or condition that she first consult with her attorney justified the refusal. It is our conclusion that it did not.
In my view, the majority misinterprets Mills v. Swanson (Footnote 9). There, as in others, the Idaho court is wisely developing an objective standard by which the conduct of the State and the defendant can be measured. On the contrary, I believe the majority provides no guidance in this area, but adopts the formlessness of total subjectivity.
Indeed, to claim support from Mills v. Swanson, the majority has the Idaho court saying one thing 460 P.2d on p. 705, and another 460 P.2d on p. 706. Finding support for one’s point is not difficult if we wish to read out of context.
The majority manufacture a straw man in saying, “. . . there is no force to the contention that an express, verbal refusal is necessary to withdraw the consent implied by the statute.” The only place I find such a contention is in the majority opinion.
Other courts have articulated a standard to determine whether there has been a refusal to submit to a chemical test — the trier of fact should consider the driver’s words and other external manifestations of willingness or unwillingness to take the test. Physical resistance is deemed as overt a manifestation of refusal as a verbally expressed “no.”11
Under the facts of this case, may Beck’s silence be held as a matter of law to constitute an external manifestation of unwill*1343ingness to take a chemical test, an express refusal?
The majority opinion relates that initially the arresting officer read Beck the law, and then “on two subsequent occasions” explained to Beck the consequences of a refusal to take the test. Finally, at the jail, the officer again asked Beck to take the test. The majority opinion states that these events occurred over a period of 30 or 40 minutes. The majority opinion concludes:
. Clearly, the plaintiff had ample opportunity , to learn the consequences of his refusals, to take a test and sufficient time to fully deliberate and even to change his mind. ■
According to the record, the first three occasions were not, in fact, separate and distinct events, but were rather a part and parcel of one-time continuum.
The arresting officer, Randall Mark, testified:
A. Immediately after I placed him in the rear of my patrol car — there is a cage installed between the back seat and the front seat, part screen and part glass.
I turned to my side and opened my briefcase, and there’s a little orange card I keep in there that has the implied consent law on it.
I stated to Mr. Beck, as I do anyone else, ‘Listen very carefully. I have something that I’m required to read to you.’
I read it verbatim off the card, and I said, ‘Do you understand?’
And Mr. Beck says, ‘I’m a criminal; yeah, yeah, yeah, I’m a criminal.’
I said, ‘Let me explain it to you again in my own words. If you do not take the Breathalyzer test you will lose your license for a year. Do you want to take the test?’
He said, T don’t know.’ And I asked him again, and he never said anything.
During this time, Beck was described as hostile, agitated, angry, and upset. It. should be reiterated that Beck was pulled over because his vehicle matched the description of one given by the dispatcher. The officer was asked if the driving pattern were not the sole reason the officer stopped the vehicle. The officer responded “No, Sir; it was not the reason at all.” The officer arrested Beck after observing his demeanor and administering a field sobriety test. One factor observed by the officer was Beck’s slurred speech. It is interesting to note the officer later learned this was Beck’s usual speech pattern.
When Beck and the officer arrived at the jail, the officer asked Beck one more time to take the test. The officer interpreted Beck’s remaining mute as a refusal and immediately executed the refusal form and departed.
The police officer testified plaintiff never expressly refused to take the Breathalyzer test.
Counsel for the state queried the officer:
Was there anything about his physical demeanor that would lead you to believe that he had refused?
The arresting officer responded:
Other than remaining mute; no.
The officer testified he was at the jail only five to seven minutes — the time required to fill out the form. Significantly, the officer testified he did not explain to Beck the consequences of his refusal when they arrived at the jail, and the last request to take the test was made. If Beck’s silence were deemed the basis of the refusal, the officer was required under the mandate of subsection (b) to inform Beck of the consequences.
The state argued before the trial court that under the circumstances, there was an implied refusal. The trial court found the actions of Beck amounted to a refusal. With this conclusion, I cannot agree. Beck’s actions indicated neither a willingness nor unwillingness to take the test; so the statutory consent had not been withdrawn. If the officer had informed Beck of his interpretation of Beck’s silence and that he was executing a refusal form, the ambiguity of Beck’s silence could have been resolved. Under the facts of this case, Beck’s refusal can only be inferred, derived by implication, which is contrary to the statute. Beck did not show or express a positive unwillingness to take the test; his actions did not demonstrate a rejection of the offered test. Under our implied consent *1344law, a refusal must be express in the sense there must be an external manifestation of unwillingness to take the test; a refusal cannot be based on inference. Otherwise, the legislative policy circumscribing withdrawal of consent to the narrowest grounds would be undermined by a dubious judicial construction. Section 41-6-44.10 is an implied consent law, not an implied refusal law.
. See following statement: . . How many times should an officer ask a driver who refuses to give an unequivocal answer, to take the test? Should he be required to persist and continue to repeat the request until such time ’ as the driver believes that he has achieved a degree of sobriety sufficient to pass the test and is safe in giving a straight answer? . . ”
. See the North Dakota Statute, § 39-0801 N.D.R.C.1953, Sup., and how it was contrasted with an implied consent law in State v. Bock, 80 Idaho 296, 328 P.2d 1065, 1072-1073 (1958).
. 1967 U.L.R. 170.
. 1967 U.L.R. 171-173.
. Under a constitutional interpretation requiring consent for the taking of body fluids, the legislative imposition of a choice of either submitting to a chemical test or losing the driving license is constitutionally sound so long as the statutory procedures meet due process requirements: a legitimate legislative end, a reasonable means of meeting that end, and sufficient procedural safeguards. Several considerations indicate that all such requirements are met by implied consent laws. First, exclusion of drunken drivers from the highways is a legitimate end of legislation. Second, the use of the compulsory chemical test, or in the alternative the license suspension, is the only reasonable means thus far found which is accommodated to accomplish this end effectively. Third, the menace of drunk driving is such that a condition on the driving license which requires submission to a test when arrested for drunk driving is warranted — whether the license is regarded as a privilege or a right. Fourth, notice and opportunity for hearing, the procedural due process requirements when an important interest is at stake, have been provided for in the implied consent laws. 1967 U.L.R. 173.
. Webster’s Third International Dictionary.
. See State v. Stover, 271 Or. 132, 531 P.2d 258 (1975).
. 80 Idaho 296, 328 P.2d 1065, 1072-1073 (1958).
. 93 Idaho 279, 460 P.2d 704, 705 (1969).
. 93 Idaho 679, 471 P.2d 66, 68 (1970).
. Dolan v. Rust, Sup.Ct.Colo., 576 P.2d 560, 562 (1978); Roswell v. City & County of Honolulu, Sup.Ct.Haw., 579 P.2d 663, 671 (1978); Campbell v. Superior Court, 106 Ariz. 452, 479 P.2d 685, 696 (1971).