specially concurring and dissenting.
The majority opinion holds that A.R.S. § 28-691(B) does not require that the State request a suspect to submit to a test for the purpose of determining the alcohol content of his blood if arrested for a violation of the DWI statute. I agree with the majority’s analysis that the provisions of the subsection are permissive, not mandatory. My disagreement and dissent from the majority opinion is limited to the holding that a person arrested for a violation of the DWI statute must be promptly informed of his right to secure an independent alcohol test to determine the alcohol content of his blood.
Conceding, as the majority does, that the State normally has no obligation to aid a suspect in gathering potentially exculpatory evidence (at pp. 274-275), the majority then makes the quantum leap that the unique evidentiary circumstances attending to DWI arrests justify a narrow exception. Notable is the absence of the citation of any authority which supports such a proposition. The authorities to the contrary are brushed aside as “unpersuasive” and con*393trary to “more modern state decisions.” Apparently 1968 and 1974 decisions are somehow archaic especially when they reject concepts earnestly desired by the majority.
The few cases arising in this jurisdiction which the majority refers to are all cases in which the State has in some fashion interfered with the efforts of the accused to obtain an independent test to determine the alcohol content of his blood. It is one thing to hold that the State may not interfere with the efforts of a suspect to secure exculpatory evidence, and it is entirely another proposition to conclude that the police must become advisors to the suspect and advise him of the “right” to secure such evidence.
The willingness of the majority to reject competent case authority, and to ignore long-standing rules of law launches us into a revision of due process guided only by the achievement of a desired result. Due process should not depend upon the feeling of a few judges. When this court speaks on an issue, especially one involving the state constitution, the result should comport with generally established principles of what is required and expected of the legal process.
There is nothing uniquely different about the prosecution in a DWI case from that in any other. The majority seems to place great store in the fact that current technology provides a method to more accurately measure the amount of alcohol in a suspect’s blood. If a law enforcement department does not have testing equipment, the advice to the accused that he may secure his own test really offers nothing of substance. An accused trying to arrange a blood test from the jail will be a real challenge. How much assistance must law enforcement offer? Must the accused be transported to the testing location? The majority conclude that their new due process requirement will not cause any appreciable burden on law enforcement authorities, but even if it does, the majority believe that the ends justify the burden.
Fortunately, the South Tucson situation of no testing is unique, and today’s ruling is limited in its application. My concern, however, is that this court may indulge in more expansive development of due process based on vague personal feelings clothed in rhetoric.
HAYS, J., agrees with Chief Justice H0-LOHAN’s concurrence and dissent.SUPPLEMENTAL OPINION
GORDON, Vice Chief Justice.We accepted this motion for reconsideration in order to settle a question left unanswered in Montano v. Superior Court, No. 18186-PR, filed April 18, 1986, namely, whether the decision is to be retrospectively or prospectively applied. The decision is to be applied prospectively to all arrests occurring after the date of the mandate. In all other respects the motion for reconsideration is denied.
CAMERON and FELDMAN, JJ., concur.