dissenting.
The gravamen of plaintiffs appeal is that, although the arresting officer may have been justified in arresting him and in requesting a test pursuant to § 42-4-1202(3)(a)(III), C.R.S. (1984 Repl. Vol. 17), the request triggered a search and seizure under the Fourth Amendment and Colo. Const, art. II, § 7. Therefore, plaintiff argues that § 42-4-1202(3)(a)(III) must be construed so that a search and seizure thereunder is reasonable. Hence, he concludes that if the seizure can be conducted in a less intrusive manner than by the taking of blood and still meet the compelling need of the state to deter persons under the influence of impairing drugs from driving on our highways, then that less intrusive seizure should be available to the arrestee. I agree. See Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); Karst, Legislative Facts in Constitutional Litigation, 1960 Sup.Ct.Rev. 75 at 82-83. See also § 42-4-1202(3)(b), C.R.S. (1984 Repl.Vol. 17) (tests shall be in accord with the utmost respect for the constitutional rights of the person being tested).
Implicit in § 42-2-1202(3)(a)(III) is that tests of blood, saliva, and urine are equally efficacious. Therefore, if the resources are equally available for the taking and testing of urine as are available for taking and testing of blood, I would hold that an arres-tee who has bona fide fears, concern for health, or religious scruples should be allowed to opt for a urinalysis instead of a blood test. See Schmerber v. California, supra. Cf. Graham v. Connor, — U.S. *67-, 109 S.Ct. 1865, 104 L.Ed.2d 443 (U.S. 1989) Rehnquist, C.J. (In Fourth Amendment contexts, the “reasonableness” inquiry is viewed in an objective light). But see Davis v. Colorado Department of Revenue, 623 P.2d 874 (Colo.1981) (interpreting prior statute relating to blood alcohol which held that if the arrestee did not opt for a blood test, he had no right to select between breath or urine testing).
Finally, I note the Brewer v. Motor Vehicle Division, 720 P.2d 564 (Colo.1986) and cases relied on therein must be read in a Fifth Amendment rather than a Fourth Amendment context and, therefore, are not dispositive of the issue here.
Thus, I would reverse the trial court with directions to remand to the Department for determination whether plaintiff did, in fact, express a bona fide fear concerning the needles to be used in the taking of his blood, whether he requested á urinalysis, and whether facilities were available to perform the tests. If these queries are answered affirmatively, I would order that the revocation of plaintiffs driving privileges be vacated and that his privileges be restored forthwith.