dissenting:
The majority today sounds the death knell to the proposition that article II, section 21 of the Oklahoma Constitution may, under some circumstances, grant an accused broader protection than the Fifth Amendment to the United States Constitution. The majority overrules prior cases to the contrary. Because I disagree with such a position under the limited circumstances of this case, I dissent.
Appellant argues that admission of his refusal to take a breathalyzer test violated his right against self-incrimination under article II, section 21 of the Oklahoma Constitution. I agree. Statutory provisions must yield to constitutional provisions. Draper v. State, 621 P.2d 1142, 1145 (Okla.1980). To the limited extent that it makes the refusal to submit to an intoxication analysis admissible at trial in a criminal action, I would hold that 47 O.S.Supp.1984, § 756, violates article II, section 21 of the Oklahoma Constitution.
In McCullick v. State, 682 P.2d 235, 236 (Okla.Crim.App.1984), in reversing and remanding for a new trial, this Court unanimously reaffirmed its longstanding rule that the refusal to submit to a sobriety test was inadmissible in a criminal prosecution for driving under the influence of alcohol. McCullick relied upon prior cases and the 1983 version of 47 O.S.Supp.1983, § 753, which granted an absolute right to one arrested for DUI to refuse to submit to an alcohol test, with the attendant consequence of revocation of their driver’s license. Id. McCullick further stated “the admission or exclusion of such evidence is a proper matter to be resolved by the legisla*1279tive branch of government within the framework of the constitution. ” Id. (emphasis added) The Oklahoma Legislature responded to McCullick with several amendments.
Effective November 1, 1984, under 47 O.S.Supp.1984, § 756, evidence that a person has refused to submit to an intoxication analysis is admissible at trial in a criminal action arising out of acts alleged to have been committed by a person driving or in actual physical control of a motor vehicle while under the influence of an intoxicating substance. Section 753, which had previously granted an absolute right to refuse to submit to an intoxication analysis, was amended effective November 1, 1985, and granted a right of refusal “unless the investigating officer has probable cause to believe that the person under arrest, while intoxicated, has operated his motor vehicle in such a manner as to have caused the death or serious physical injury of any other person or persons. In such event, such test otherwise authorized by law may be made in the same manner as if a search warrant had been issued for such test or tests....” 47 O.S.Supp.1985, § 753.
I.
In 1957, Judge John Brett held that a refusal to take an intoximeter test was inadmissible. Duckworth v. State, 309 P.2d 1103, 1105-06 (Okla.Crim.App.1957). Judge Brett’s reasoning was based on the fact the defendant had a right to refuse to take the test:
It ill behooves the courts to say you have a right to refuse to do something, which may prove beneficial or detrimental to you, and yet, notwithstanding your right so to do, we will permit your refusal to be shown and enable the state to destroy your right and achieve indirectly by innuendo what it was prevented by law from accomplishing directly. We can conceive of no greater inconsistency.
Id. at 1105. The Duckworth decision was followed in Engler v. State, 316 P.2d 625, 627 (Okla.Crim.App.1957), wherein Judge Nix wrote: “If the defendant voluntarily submits, the results may be introduced as evidence, but to refuse is within his constitutional rights and jurors would not be permitted to speculate by presumption or suspicion as to why he refused_” (emphasis added). In 1971, Judge Tom Brett held “the Oklahoma Constitutional prohibition against self-incrimination is broader in scope than the federal ... [provision]_” Bailey v. City of Tulsa, 491 P.2d 316, 318 (Okla.Crim.App.1971). In 1973, a unanimous court, including Judge Bussey, reaffirmed the principle that Oklahoma’s constitutional privilege against self-incrimination “goes further than the analagous provision of the Fifth Amendment to the Federal Constitution....” Synnott v. State, 515 P.2d 1154, 1155 (Okla.Crim.App.1973).
Then in 1975, in an opinion written by Judge Bussey and concurred in by Judge Bliss, the Court reversed its prior position by holding that “the particular phraseology contained within our constitutional provision upon self-incrimination is simply declaratory of the common law and does not grant broader protection than that embodied within the Fifth Amendment to the Federal Constitution. Those cases so indicating to the contrary are hereby overruled.” State v. Thomason, 538 P.2d 1080, 1086 (Okla.Crim.App.1975). See also Shelton v. State, 583 P.2d 1107, 1110 (Okla.Crim.App.1978); Ross v. State, 556 P.2d 638, 640 (Okla.Crim.App.1976). Most recently, in State v. Neasbitt, 735 P.2d 337, 338 (Okla.Crim.App.1987), the Court followed the rationale of Thomason and held that 47 O.S.Supp.1984, § 756, which permits admission at trial of an accused’s refusal to submit to a sobriety test, did not violate article II, section 21. However, for the following reasons, I believe Neasbitt was wrongly decided.
II.
I believe the rationale expressed in Bailey v. City of Tulsa, 491 P.2d 316, 317-19 (Okla.Crim.App.1971), to the extent it rec*1280ognized that article II, section 21 of the Oklahoma Constitution could, under some circumstances, be broader in scope than the Fifth Amendment of the Federal Constitution, best represents the approach contemplated by the framers of article II, section 21. I would emphasize that my opinion is limited to the admission of a refusal to submit to an intoxication analysis. The sole purpose for admitting such a refusal is to allow the jury to infer guilt. Clearly, a refusal to submit to an intoxication analysis is not in itself probative of guilt or innocence but, as already pointed out in Duckworth and Engler; amounts to nothing more than conjecture, innuendo, or suspicion. For these reasons, I believe article II, section 21 of the Oklahoma Constitution is sufficiently broader than the Fifth Amendment to the United States Constitution so as to prohibit the use of an accused’s refusal to submit to an intoxication test as evidence against him at trial. See Engler, 316 P.2d at 627; Duckworth, 309 P.2d at 1105-06. See also Jackson v. State, 397 P.2d 920, 923 (Okla.Crim.App.1965).
Such a holding is supported by a comparison of the Oklahoma and Federal self-incrimination provisions. “No person shall be compelled to give evidence which will tend to incriminate him, except as in this Constitution specifically provided....” Okla. Const. art. II, § 21 (emphasis added). “No person ... shall be compelled in any criminal case to be a witness against him-self_” US. Const, amend. V (emphasis added). Significantly, the Oklahoma Constitution prohibits compelled incriminating “evidence” while the United States Constitution prohibits a person from being compelled to be a “witness” against himself. An examination of the language originally proposed, and later rejected at the Oklahoma Constitutional Convention, strongly suggests that the framers of the Oklahoma Constitution intended article II, section 21, to be broader in scope than its federal counterpart, the Fifth Amendment to the United States Constitution:
At the Oklahoma Constitutional Convention, there were two substantially different proposals made as to how Oklahoma’s self-incrimination provision should be phrased:
(1) Resolution 54: “... no person shall be compelled to testify against himself in a criminal cause_”
(2) Proposition 79: “... nor be compelled in any criminal case to be a witness against himself.”
Yet, when the Committee on Preamble and Bill of Rights reported, neither proposal was used. Rather, the Committee had adopted different language which read, “No person shall be compelled to give evidence which will tend to crimi-nate [sic] him.” Why the Committee rejected the proposed language and adopted a different phraseology will probably never be known, for no minutes of the Committee’s meetings are known to exist. However, since the literal meaning of the language chosen is broader in scope than the rejected language, it is at least arguable that the intent of the Oklahoma Constitutional Convention was to provide a broad protection against selfincrimination which would encompass more than testimonial evidence, (footnotes omitted) (emphasis added)
Note, Criminal Law: Nontestimonial Aspect of Oklahoma’s Right Against Self-Incrimination, 28 Okla.L.Rev. 122, 123-25 (1975). I agree that it
is illogical to suggest that the twentieth-century drafters of article II, section 21, who chose to use different language than that afforded by the eighteenth-century federal fifth amendment, meant to protect exactly the same rights to the same extent. If that was the intent, any language other than the federal language would be dangerous. A different, more protective intent would seem to be evidenced in the Oklahoma constitution.
M. Miller, Oklahoma’s Constitutional Right Against Self-Incrimination and the Introduction Into Evidence of the Refusal to Take a Sobriety Test, 37 Okla.L. Rev. 245, 252 (1984). The rationale in Tho-*1281mason, 538 P.2d at 1081-86, is not persuasive, as a careful review shows that it was based solely on the origin and history of the Fifth Amendment to the United States Constitution, and thus reflected current understanding of the Federal Fifth Amendment and not article II, section 21 of the Oklahoma Constitution. See Miller, supra, at 258. Prior Oklahoma case law and the deliberate change in phraseology of article II, section 21 of the Oklahoma Constitution, which is at variance with the language of the Fifth Amendment to the United States Constitution, support the conclusion that the Oklahoma provision is, under some circumstances, broader in scope than the federal provision. Id. at 258-59. In effect, the Court today “amends” article II, section 21 of the Oklahoma Constitution to conform it to the Fifth Amendment to the United States Constitution. Such “amendments” should not be made by this Court, but should be properly submitted to the citizens of the State of Oklahoma for approval or rejection.
I fully realize that under the United States Supreme Court’s decision in South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983), the same result would not obtain under the fifth amendment. But the Neville case is not, and should not be, determinative of the constitutional rights of Oklahoma citizens under article II, section 21 of the Oklahoma Constitution. This Court unanimously recognized in McCullick, 682 P.2d at 236, that Neville did not change Oklahoma law. A state court decision clearly and expressly resting on bona fide separate, adequate, and independent state grounds is not subject to federal review. Michigan v. Long, 463 U.S. 1032, 1041, 103 S.Ct. 3469, 3476, 77 L.Ed.2d 1201 (1983). As was aptly stated by Justice Kauger in Turner v. City of Lawton, 733 P.2d 375, 378-79 (Okla.1986), cert. denied, 483 U.S. 1007, 107 S.Ct. 3232, 97 L.Ed.2d 738 (1987):
The Constitution of the State of Oklahoma contains independent sources of rights and liberties, which may, under some circumstances, offer more protection than the federal constitution. The Oklahoma Constitution does not merely project a mirror image of the federal constitution. The people of this state are governed by the Oklahoma Constitution, and when it grants a right or provides a principle of law or procedure beyond the protections supplied by the federal constitution, it speaks for every person as the supreme law and the final authority for everything which is done in pursuance of its provisions, (footnote omitted)
Accordingly, article II, section 21 of the Oklahoma Constitution constitutes a bona fide, separate, adequate, and independent state ground upon which I would rest the holding that, absent a valid waiver, the admission of appellant’s refusal to take a breathalyzer test violated his state constitutional right against self-incrimination. Id. at 381. See Michigan v. Long, 463 U.S. at 1041, 103 S.Ct. at 3476.
For all of the foregoing reasons, I dissent.