(concurring):
I concur but do so on grounds different than those relied upon in the majority opinion. I concur in affirming the conviction of the defendant on the ground that there is no evidence before us that his submission to the breathalyzer test was involuntary. He has not provided us with a transcript of the testimony at the trial, and we are left with only the clerk’s notes as to the testimony of the witnesses. The clerk noted that the arresting officer testified that the defendant at first refused to take the test, but after he was allowed to telephone his attorney, he consented to take the test. Nothing further appears to explain why the defendant changed his mind. It is entirely possible that he and his attorney determined that he was not intoxicated and that he could pass the test. There is no evidence, not even the defendant’s testimony, that he felt compelled to submit to the breathalyzer test in order to escape the consequence of losing his license if he refused.
Article I, section 12 of the Utah Constitution provides a privilege from being compelled to give evidence against oneself. If one chooses to provide such evidence, the privilege is waived, and he cannot afterward complain.