dissenting. I dissent as to Division 2 of the majority opinion and from the judgment of reversal. It is my view that the evidence as to the defendant’s refusal to- take the breatholizer test for -determining the alcoholic content of the blood was properly admitted.
Statutory history. The Uniform Traffic Act was adopted at the November-December 1958 Session of the General Assembly (Ga. L. 1953, Nov. Sess., p. 556) and §47 (which became Code Ann. § 68-1625) made it an offense to operate or drive a motor vehicle while under the influence of intoxicating beverages, and provided that "in any criminal prosecution for a violation” thereof the alcoholic content of the accused^ blood to- specified portions- should raise rebuttable presumptions' as to his condition. It gave the accused the right to demand the blood test, provided that it should be made, at his. expense, not to exceed $10, and further provided that "Dnfothing in this Act shall be construed as requiring any person to take such examination against his wishes,” and that "the failure of such arrested person to-demand such a test or to consent to such a test shall not be admitted in evidence at the trial of such person.”
The limitation on the cost of the test, assessable to the *612accused, was raised to $20 by Ga. L. 1966, pp. 70, 71.
In 1968 the General Assembly, by Ga. L. 1968, p. 448 et seq., amended the Uniform Traffic Act by striking in its entirety §47 (which was carried in the Annotated Code as §68-1625) and substituted a new §47 (which is now found in the pocket part of the Code as Code Ann. §§ 68-1625 and 68-1625.1). Section 47 (a) re-enacted the provision making it a criminal offense to operate or drive a motor vehicle while under the influence of intoxicants, and subsection (b) provides that "upon the trial of any person accused of violating subsection (a) of this section, evidence as to the amount of alcohol in the defendant’s blood at the time of the alleged offense as shown by a chemical analysis of the defendant’s blood or breath shall be admissible as competent evidence bearing upon the question of whether the person was under the influence of intoxicating liquor,” and that the results of the tests should give rise to specified presumptions. (Emphasis supplied.) It also provides for release to the accused of the results of the tests upon request from him or his attorney. Driving while under the influence of drugs was also made an offense. Provisions were included for suspending the driver’s license of the accused upon conviction.
Section 47A (§ 68-1625.1 in the Code) provides that all who drive or operate motor vehicles upon public roads or highways are deemed to have given consent to the tests, and that "[n]o person shall be required to take a blood test if he objects thereto, and in such case such person shall be given a breath test”1 (emphasis supplied), and further provides that upon refusal to take the test his driver’s license, after hearing, shall be suspended.
Thus, provisions theretofore included which prohibited the admission in evidence of the failure of the accused to demand a test, or of his refusal to consent thereto, were *613repealed, and were not reenacted or carried forward in the new Act. It is not now in the law, and we must conclude that this change in the law was deliberately made. Where the General Assembly repeals an Act and adopts another, omitting from the latter provisions that were carried in the former, it must be presumed that it was intended to withdraw authority extended under the omitted portions and these are no longer to be given effect. Webb v. Alexander, 202 Ga. 436 (43 SE2d 668).
Neither this court nor the Supreme Court has had occasion to consider whether, under the law as it now stands, the evidence is admissible. The question is one of first impression.
First, let us note that while the accused may refuse a blood test, in that event "he shall be given a breath test.” The breath test is mandatory. The courts have held that he is excused if he suffers from a disease making it impossible to complete the breath test, such as, for example, emphysema (Burson v. Collier, 226 Ga. 427 (175 SE2d 660); Department of Public Safety v. Orr, 122 Ga. App. 439 (177 SE2d 164)), the rationale being that the law never requires the impossible of anybody. Kelly v. Locke, 186 Ga. 620, 626 (198 SE 754). While the law does not require the impossible of him, it does not afford one who is able to do so the right to refuse to take the breath test. This defendant made no assertions of his inability to take it, or of any unreliability of the test, or as to the type of the test — he simply refused to take it, according to the testimony of the officers.
Our sister states of Idaho and Wisconsin have dealt with this matter. In Idaho the statute went so far as to provide that "A defendant in a criminal action or proceeding to which he is a party, is not, without his consent, a competent witness for or against himself. His neglect or refusal to give such consent shall not in any manner prejudice him nor be used against him on the trial or proceeding.” The Supreme Court of that State, in State v. Bock, 80 Idaho 296 (328 P2d 1065) held that this provision of the statute "deals only with the right of the defendant to choose whether or not he shall become a witness. . . It deals with the defend*614ant -only as a witness, and guards against testimonial compulsion, not against 'real’ evidence.” Consequently, the court concluded that it did not apply to evidence of -the defendant’s conduct, before the trial, in refusing' to submit to the test, and noted that "It is significant that our statute contains no such provision [prohibiting the admission into evidence of his refusal to take the test]. The courts should not add a limitation which the legislature has not seen fit to impose.” (Emphasis supplied.) "This court can neither rewrite the law nor hedge it about with restrictions not included in it.” St. Paul Fire &c. Ins. Co. v. Miniweather, 119 Ga. App. 617 (3) (168 SE2d 341). A similar result was reached upon similar reasoning by the Supreme Court of Wisconsin in City of Barron v. Covey, 271 Wis. 10 (72 NW2d 387). We regard it as significant that our present statute- carries no such provision, and the significance is even greater because the prior statute did, as we -have shown. It should not now be added by us.
Constitutional issue. In Schmerber v. California, 384 U. S. 757 (86 SC 1826, 16 LE2d 908), the Supreme Court of the United States foreclosed the issue as to whether an accused’s right under the Fifth Amendment against self-crimination is -violated by requiring him to take the- blood test, using the very basis of the Act of 1968 that one who uses the public roads and highways upon which to drive a motor vehicle impliedly consents to the tests- when the arresting officer has reasonable cause to believe that the acr cused was .under the influence of intoxicants or of drugs. We regard the decision of our Supreme Court in Dennis v. State, 226 Ga. 341 (175 SE2d 17), upholding the. law requiring that one operating a truck on the public highway permit a weighing to determine whether the truck is overloaded, to be in line with the holding in Schmerber. While the court did observe that a driver "may elect to refuse to drive upon the scales,” it did not hold that evidence of his refusal would not be admissible against him.
If it does not violate his right against self-crimination to have the test made and upon the trial to admit evidence as *615to the results, which show him to have been under the influence, how can we conclude that it does so simply to admit evidence that he was offered the test, as the law requires be done, and that he declined to take it? In the first instance positive evidence is admitted showing his guilt, while in the latter the evidence can do no more than raise an inference that he may have refused to take the test because of his consciousness of guilt. Evidence of the accused’s failure or refusal to take the test is not violative of his. constitutional rights. People v. Conterno, 170 Cal. App. 2d 817 (339 P2d 968); State v. Munroe, 22 Conn. Supp. 321 (171 A2d 419); Alldredge v. State, 239 Ind. 256 (156 NE2d 888); State v. Benson, 230 Iowa 1168 (300 NW 275); State v. Kaufman, 211 La. 517 (30 S2d 337); State v. Gatton, 60 Ohio App. 192 (20 NE2d 265); State v. Durrant, 55 Del. 510 (188 A2d 526); Gardner v. Commonwealth, 195 Va. 945 (81 SE2d 614). There are others. See Anno. 16 LE2d 1332.
In Gardner v. Commonwealth, 195 Va. 945, 951, supra, the Supreme Court of Appeals of Virginia, holding the evidence as to the refusal of the accused to take the test to be. admissible and to violate no constitutional rights, observed that in so refusing "The accused is not testifying,, nor is he compelled thereby to take the stand to refute the accusation. The Commonwealth’s witness merely details the behavior or conduct of the accused under the circumstances. No one would seriously contend that the Commonwealth could not show that an accused was seen running from the place where a crime had been committed, and yet in a broad sense in doing so he would be giving evidence against himself.”
Circumstances surrounding the arrest. It has long been the law of this State that all of the circumstances connected with the arrest are properly admitted for consideration by the jury... For example, it is proper to show that the defendant, charged with murder, was drunk (Wooten v. State, 224 Ga. 106 (5) (160 SE2d 403); Robinson v. State, 130 Ga. 361 (3) (60 SE 1005)), or flight by the accused after the crime *616was committed, his possession of arms, and whether he resisted when arrested. Wayne v. State, 56 Ga. 114, 119. It has been held proper to admit evidence that the accused remained silent in the face of an accusation. "Acquiescence or silence, when the circumstances require an answer or denial or other conduct, may amount to an admission. When a statement tending to incriminate a person is made in his presence and he remains silent, the mere fact that he is under arrest or is in custody at the time will not render evidence of such statement and silence inadmissible as an implied admission.” Emmett v. State, 195 Ga. 517 (2) (25 SE2d 9). Accord: Kalb v. State, 195 Ga. 544 (25 SE2d 24); Walker v. State, 197 Ga. 221 (28 SE2d 656); Drumright v. State, 29 Ga. 430; Creel v. State, 216 Ga. 233 (3b) (115 SE2d 552).
In State v. Benson, 230 Iowa 1168, supra, the court was dealing with the contention that evidence as to a refusal to take the alcohol blood test was inadmissible and, holding against this contention, said: "It is proper to show the defendant’s conduct, demeanor and statements (not merely self-serving), whether oral or written, his attitude and relations toward the crime, if there was one. These are circumstances that may be shown. Their weight is for the jury to determine. The fact that the defendant declined to submit to a blood test is such a circumstance. . . The jury may consider it.” (Emphasis supplied.) Cf. 8 Wigmore on Evidence, 3rd Ed. § 2268, p. 388, 1953 pocket supp. p. 128.
"Evidence as to the time when and the place where arrested, the manner of the arrest, how the accused was armed, and whether he resisted, and all the circumstances connected with the arrest, are proper matters to be submitted to the jury to be weighed by them for what they are worth.” Bridges v. State, 227 Ga. 24 (3) (178 SE2d 861). And see Henderson v. State, 227 Ga. 68 (7b) (179 SE2d 76).
It is inescapable that the accused’s refusal to take the breatholater test was a circumstance connected with the arrest and evidence thereof was properly admitted.
Waiver. Even if it were within the province of the de*617fendant to object to this evidence on the grounds urged, it appears that he has waived his objection. When the State’s evidence closed the defendant voluntarily took the stand and joined the issue by asserting "I hadn’t been offered the blood test at all.” If the evidence had been ruled out, this statement immediately made it admissible and it could have been reintroduced to contradict this statement (Morris v. State, 177 Ga. 106, 115 (169 SE 495)), but since the evidence had already been admitted it would have been useless to tender the same thing again. The law does not require the doing of a useless thing. Johnson v. State, 215 Ga. 839 (5) (114 SE2d 35).
The refusal to take the test is not to be equated with the failure of the accused to take the stand and make an unsworn statement or testify in his own behalf. We agree readily that it is improper for the court or the State’s counsel to make reference to that. But that is not a circumstance connected with the arrest — it is something which happens in the course of the trial itself.
Probative value. Does the refusal to take the test have probative value? We think it does, just as does evidence of flight. While it is not proof of an admission of guilt, and refusal of it may have been occasioned by a fear that the test results would not be accurate, yet if that be the case the defendant is at liberty to say so to the jury, and it is for them to conclude whether that be the case, or, on the other hand, whether it reveals a consciousness of guilt (Prather v. State, 116 Ga. App. 696 (1) (158 SE2d 291)), because he was really afraid that the test would reveal him to be more intoxicated than the officers observed. "Actions speak louder than words,” and the jury should be allowed to consider both what he did and what he says. We are supported in this view by People v. McGinnis, 123 Cal. App. 2d 945 (267 P2d 458); People v. Conterno, 170 Cal. App. 2d 817, supra; State v. Bock, 80 Idaho 296, supra; State v. Tryon, 145 Conn. 304 (142 A2d 54); City of Westerville v. Cunningham, 15 Ohio St. 2d 121 (239 NE2d 40); Gardner v. Commonwealth, 195 Va. 945, supra.
We can find no error in admitting the evidence, and since *618there was ample evidence, even otherwise, to sustain the conviction it should be affirmed.
I am authorized to state that Presiding Judge Hall and Judge Pannell agree with this dissent.
Each type of test is designed to ascertain the alcoholic content of the blood, and thus the state of sobriety or of intoxication, and each is thus a blood test.