(dissenting).
I would countermand the order of the trial court, which denied Lanier’s motion to suppress the results of his blood test, for the reasons set forth in this dissent and further believing that the far reaching effect of this decision is opposed to the principles upon which this Republic was founded, namely by expression in the United States Constitution. Accordingly, I dissent.
STATUTE UNCONSTITUTIONAL.
In State v. Heinrich, 449 N.W.2d 25 (1989), this Court upheld the constitutionality of SDCL 32-23-10. In Heinrich, this author dissented upon the basis that the Doctrine of Separation of Powers was violated. In essence, it was my belief, as it is now, that a law enforcement official cannot make a determination that the person presently being arrested — was a person previously convicted of two DUI’s. Radio calls from a records office is not a determination of two valid, prior convictions. This Court, in State v. King, 383 N.W.2d 854 (S.D.1986), held that a constitutionally infirm conviction cannot be used to enhance a *148sentence under this State’s habitual offender statutes. Our first inquiry: Is a prior conviction constitutionally valid? Secondly, may same be used for purposes of enhancement in punishment? Executive officers cannot make determinations on the infirmity of prior convictions. This Court should, in the exercise of its judgment, relate its decision in the instant case to decisions that were made in the past. This is a rule of judicial exposition rather than justification. To my way of thinking, these questions can only be determined by courts of law and not by some officer out on the highway, in the black of the night, or the heat of the day. Valid previous convictions should/would be determined in a court of law, by a judge, under my thesis and the precedent of King.
It is my opinion that the statutory language employed against Lanier is used as a bootstrap to force him to give his blood because some officer is making a determination of “a felony offense under § 32-23-4.” This is an unlawful mixture of the executive and judicial departments of government. This author believes that the statutory language is ill-conceived and is sought as a means to achieve a social result. The social result, however good and noble in the minds of the legislature, must meet constitutional muster. Hereby, I reaffirm my dissent in Heinrich. As to how an officer on the road can make a determination of the legal status of a person’s prior record, beggars the imagination.
Additionally, I urge the following rationale as to why this statute is unconstitutional. In my opinion, the South Dakota Supreme Court has misapplied the holdings in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1967) and South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983). This Court has previously held that, where the defendant has the right to refuse the blood-alcohol test, constitutional protections are thereby guaranteed. We have, before us, the current statute which eliminates the right of refusal for persons twice convicted of a violation of SDCL 32-23-1.
In my opinion, Schmerber and Neville do not support a holding that this statute is constitutional because there is a definite distinction between Art. V of the United States Constitution and Art. VI, § IX of the State Constitution of South Dakota. Said provision of the United States Constitution expresses, inter alia, “No person ... shall be compelled in any criminal case, to be a witness against himself....” Said state constitutional provision expresses, inter alia, “No person shall be compelled in any criminal case to give evidence against himself....” Therefore, to pass a law to require a South Dakota citizen to give evidence against himself (blood) through physical force is against our state constitution. Read the footnote found in the first Neville case on page 726. I refer to the first Neville case at 312 N.W.2d 723, 726 (S.D.1981). Said footnote reveals that there is a distinction in the constitutional provisions of the federal and our state constitution. The United States Supreme Court recognized this distinction in Neville. Schmer-ber was decided in the backdrop of a more liberal definition of evidence, as used in our state constitution. Obviously, the Schmer-ber court was not, in 1966, considering this state’s constitution. Schmerber arose from California. In the Neville footnote, this Court indicated that there was no need to draw a distinction “at this time” between the federal and state constitution.
In the second Neville case found at 346 N.W.2d 425 (S.D.1984) we addressed the distinction between these two constitutional provisions and found that a refusal is of a “testimonial nature,” thus protected by the privilege against self-incrimination but, nonetheless, admissible as such a refusal is not the result of the compulsion prohibited by our state constitution. “It would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community.” (Alexander Hamilton). I share no guilt for exercising the doctrine of judicial review. Often, a statute such as this is based upon political results at the polls but do clash with constitutional guarantees.
*149We should address this question: Does this statute compel submission to a blood test which violates the state constitution when it prohibits the compulsion of giving “evidence” against one’s self? If one reads Schmerber carefully, it is noted that it states that the critical question was whether “petitioner was thus compelled ‘to be a witness against himself’.” (Emphasis supplied mine). So this author believes that these distinctions, found in the two constitutional provisions, must now be addressed. This author notes, that in the second Neville case, this Court held the defendant was not compelled to give evidence against himself because he had an option to submit to the blood test. Suffice it to say, the option is now eradicated by state law via the Legislature. In State v. Hoenscheid, 374 N.W.2d 128 (S.D.1985) page 180, I will concede that this Court awkwardly placed weak and misguided language in its opinion. How so? Simply because we expressed that we had held that the proscription (in Neville II), pertaining to the state constitutional provision, was no broader than the Fifth Amendment to the U.S. Constitution. A closer review of Neville II does not so hold. We therefore should now give a more meaningful expression of legal thought as to the word “evidence” as found in our state constitution. The time is ripe to interpret the distinction between these two constitutional provisions because the option has now been eliminated. Our holdings need clarification and I travel the liberal road on interpreting our state constitution to mean that forcefully taking blood, as if a man is in chains, is compelling him to give evidence against himself, which I deem is contrary to our state constitution. Not testimony, as such, but evidence.
Alas, alack, Lanier did not urge the unconstitutionality of SDCL 32-23-10. However, having the power of a somewhat limited recall, a case surfaced into the cobwebs of my mental/legal retention. Bayer v. Johnson, 349 N.W.2d 447, 449 (S.D.1984), oozed from the murky depths of the limited recall. At page 449 thereof, this Court unanimously held: “There is good authority that where the appellate court has jurisdiction on other grounds it may decide a constitutional question on its own motion.” Bayer cites with approval City of St. Louis v. Butler Co., 358 Mo. 1221, 219 S.W.2d 372 (1949); 4 C.J.S. Appeal & Error § 240 (1957). Chief Justice Fosheim concluded, in Bayer, that “We would be less than supportive if we failed to meet that which is constitutionally offensive.” Therefore, within the bosom of that decision and language, I again assert the unconstitutionality of this statute before us and would reverse the decision of the trial court which admitted into evidence the blood results of Lanier. Such a decision would be dispositive.
NO EXIGENT CIRCUMSTANCES AND UNREASONABLE FORCE USED. THUS, BLOOD TAKING WAS CONSTITUTIONALLY OFFENSIVE.
However, realizing that my view is in the minority on the constitutionality of this statute, I treat — head on, the rationale of the majority opinion which essentially holds that the blood extracted from Lanier was vital because of “exigent circumstances” and that “use of physical force is permissible to obtain virtually the only direct evidence available of proof of alcoholic consumption”. These quotes are taken from the majority opinion and are the only linchpin rationale inherent therein; it is the cement reasoning which affixes onto some golden oldies (cases) pertinent to the issue confronting us and other cited legal sources within the majority opinion. Without attacking the outside authority and past cases, I hone in on the “linchpin rationale” of this decision, i.e., the creative thinking which justifies a conclusion from an analysis. A leap of logic, one may term it.
Lanier could have been taken to a hospital. He was not. In Schmerber, the blood extraction took place in a hospital. There was no force used in Schmerber. Here, we have the blood extraction in a jail setting where six people, not including the medical technician, held Lanier down by pinning his arms, legs, shoulder and head. Therefore, the facts of this case are quite distinguishable from Schmerber. The arresting offi*150cer had already required Lanier to perform five different sobriety tests! This is “direct evidence” and, therefore, the majority’s linchpin rationale and leap of logic, plummets. Additionally, the officer had observed his eyes (bloodshot), face (flushed) and gait (a slow staggered walk). Hence, physical evidence was available to prosecute Lanier.
There is a social interest in the general security of our citizens. People have a right to be secure from coercive law enforcement conduct, as well as all excesses of government, which threaten their existence and liberty. This is the essence of the Bill of Rights. The state had a plethora of evidence to convict. A social interest in general security of our citizens need not have been violated. I appreciate that there is a weighing of the social interest in the general security against other social interests. Drunken driving should not be countenanced. However, neither should excessive force of the executive branch be blessed by the judicial branch as a means to an end. Furthermore, Lanier could have been taken to a hospital. He was not. Jail settings are not conducive to sanitation and clean medical technology. In Schmerber, the United States Supreme Court expressed that the administration of blood tests are not entirely free of Fourth Amendment constraints. In fact, the Schmerber court most emphatically pointed out that the blood extraction "... involves virtually no risk” when withdrawn “... by a physician in a hospital environment according to accepted medical practices.” 86 S.Ct. at 1834. At 1836, the Schmerber court warned law enforcement and the jurists of this nation that it would not tolerate “... more substantial intrusions, or intrusions under other conditions.” It warned against, also, intrusions into the body which “... are made in an improper manner.”
As a member of the judiciary, I have the right to use my experience and knowledge to draw upon the same that I would make good decisions. Cf., Gross v. Connecticut Mut. Life Ins. Co., 361 N.W.2d 259, 269, 270 (S.D.1985), the right of circuit court judges to consider ordinary experiences and observations in daily affairs of life as a fact-finder. Truly, I am not a fact-finder. We must, however, at the appellate level, seek a just balance between the objectivity of theoretical decision making and the subjectivity which can be found in the process of deciding cases. In my opinion, no judge is free of subjective influences, some largely centering on his life’s experiences. In Gardner v. Toilet Goods Association, 387 U.S. 167, 201, 87 S.Ct. 1526, 1543, 18 L.Ed.2d 704 (1967) Justice Tom Clark related, in his dissenting opinion, how he deplored the practices of pharmaceutical companies; then, he proceeded to relate how he was recently “gouged” by paying an exorbitant price for certain eyewash drops. In other words, he was subjectively influenced by facts not directly in the record in arriving at his decision.
I have lived my entire lifetime in South Dakota. So I, through my experience, have knowledge of jail settings. As a lawyer who practiced for 22 years and as a former Circuit Court Judge, I have visited and seen many jails. I can assure the reader that some jail settings in this state are filthy and antiquated, not all. Taking blood, in jails, by force, such as this, is dangerous to our society. It is, simply, a brutal assault upon the constitutional guarantee to be free of “unreasonable search and seizures:”
The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated ... U.S. Const, amend. IV. (Emphasis supplied mine).
The signers of the United States Constitution would never have envisioned that brutality would be countenanced as “reasonable.” Acts such as we have before us, are offensive to that sense of justice condemned in Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952). I re-emphasize: it was not necessary to take the blood at all. A great amount of physical evidence had therebefore been mart-ialed by the state.
Law can only practice its rightful role when it adapts itself to the contemporary *151way of life and social conditions which exist. We live in times of rapid social, scientific and economic change. As change evolves, the law must meet the challenges which change births. Law must be viable — attuned to the times. Yet, I fully appreciate that those men and women who sit on the bench must not lose sight of continuity and predictability. Two concepts in the law, growth versus stability, appear to war with one another, as if they are totally repugnant, but are they? In the advancement of justice can they not co-exist? Within the language of Schmerber, we can let the growth of law continue, but likewise approve of sensible, reasonable growth.
“Means and procedures employed, in blood extraction, [must respect] relevant Fourth Amendment standards of reasonableness.” Schmerber. Schmerber concludes with the warning:
It bears repeating however, that we reach this judgment only on the facts of the present record. That today we hold that the Constitution does not forbid the State’s minor intrusion into an individual’s body under stringently limited conditions and in no way indicates that it permits more substantial intrusions, or intrusions under other conditions.
Id. 384 U.S. at 772, 86 S.Ct. at 1836. No, Schmerber does not support the majority’s position. It supports this writer’s position. And, so far, to my limited recall and oodles of research, over a span of a decade, I have been unable to find where the South Dakota State Legislature has overpowered the United States Constitution or the Highest Court of this Land.
I am likewise concerned with the transmission of communicable diseases via forcible blood extraction in a jail environment. In a Survey of Social Interests, Roscoe Pound, which article is found at 57 Harvard L.Rev. 1, 4, 6-7, 16-18, 20-27 addressed, inter alia, safety of the people and opined that it was the highest law. He reflected that general health and general morals are in the “police power” to which natural rights must give way. Pound expressed: “In another form, quite as obvious today but not so apparent in the past, before the nature and causes of diseases were understood, it is an interest in the general health.” I would establish a distinguishing precedent or rule to Schmerber because of this concern and to permit the law to be ' viable — attuned to the times. My thoughts are not competitive to Schmerber, rather, they serve as a complementary force with it. In essence, we cannot mechanistically squat on the historical decision of Schmer-ber, but must be innovative by adapting the law to the momentous social changes of the day. We must protect “domestic tranquility” (set forth as a purpose of this nation in the Preamble of the United States Constitution) by aborting decisions and acts in a jail environment which are dangerous to the public health.
My mind travels to the great nations and cultures of the world, birthed in revolution and freedom, which toppled in decadence due to the heavy hand of government. I believe that a judicial blessing of the heavy hand of the executive branch of government, in this case, is contrary to the great precepts of this Republic. My job is not to “cooperate” with the executive branch but, rather, to check on it. Yes, to stop excesses. This is my constitutional mission and obligation.