(concurring and dissenting):
I join the Court in holding that the implied consent statute1 does not compel a driver to give evidence against himself in violation of article I, section 12 of the Constitution of Utah. However, I do not join the Court in overturning Hansen v. Owens,2, because I find no inconsistency in the rule of law laid down therein.
The decision of the Court in Hansen v. Owens was expressly limited to the particular facts of that case,3 yet the majority makes no effort to draw the factual distinction that plainly exists.
In Hansen v. Owens, the defendant had refused to perform the affirmative act necessary to provide a handwriting exemplar, and the Court was called upon to compel the defendant to furnish one. That factual scenario is completely foreign to that of the instant case wherein the defendant voluntarily submitted to the breathalyzer test. He simply exercised the choice afforded him by the implied consent statute and opted to submit to the test rather than face the possible loss of his license to operate a motor vehicle.
The implied consent statute does not compel a driver to do anything, and it is not vulnerable to constitutional attack because it contains no provisions that cannot reasonably be justified under the police power exercised in the best interest of the public welfare.
If Hansen v. Owens is no longer to be the law, are the courts then duty-bound to compel an accused to provide a handwriting exemplar absolutely against his will? If so, as a matter of practicality, how is this to be accomplished? By brute force? I should think not! By exercise of the contempt power? Possibly, but such may prove ineffective since an accused is likely to face contempt rather than run the risk of conviction for a greater felony offense.
It would be far better, as was pointed out in Hansen v. Owens, to obtain a sample of the accused’s handwriting from some other source.4 To do so would preserve the time-honored doctrines of presumption of innocence and burden of proof.
The Court has this day reached a long way to overturn Hansen v. Owens and in so doing has done violence to the doctrine of stare decisis. Moreover, I remain unpersuaded that any legitimate purpose has been accomplished.
. U.C.A., 1953, § 41-6-44.10.
. Utah, 619 P.2d 315 (1980).
. Id. at 317.
. Id. at 317.