concurring.
On the issue of defendant’s refusal to be tested, I agree with the majority opinion where it concludes:
Even if it were error to instruct the jury that it could consider the refusal as evidence of the defendant’s guilt, on this record it *91would not be prejudicial. Here three officers testified that the defendant smelled of alcohol, failed three field sobriety tests, slurred his words, had glassy eyes, and while under arrest fell in and out of sleep. Tests revealed the presence of alcohol and other impairing substances in his blood and urine. Clearly there was sufficient evidence for a jury to find that the defendant was appreciably impaired and thus guilty of driving under the influence.
However, I write separately to express my concern about the procedures followed here. A defendant may decline to be tested pursuant to N.C. Gen. Stat. § 20-16.2(a)(l). If he refuses and the officer elects to pursue “testing pursuant to other applicable procedures of law,” this should be explained to the defendant in order that he may make a final decision on whether to submit to being tested. Only if he then refuses should he be reported as having “willfully refused” to be tested.
In any event, in my opinion, N.C. Gen. Stat. § 20-16.2 and § 20-139.1 need remedial legislative action to clarify under what circumstance a defendant is deemed to have “willfully refused” to be tested such that he is subjected to the additional penalties of N.C. Gen. Stat. § 20-16.2(d).