concurring.
This appeal presents for reconsideration the question of whether the State may initially elicit from the arresting officer or others the fact that the accused has been offered and refused to take a breath test to determine intoxication. The State urges that reconsideration is long overdue in light of Olson v. State, 484 S.W.2d 756 (Tex.Cr.App.1972), which overruled Trammell v. State, 162 Tex.Cr.R. 543, 287 S.W.2d 487 (1956). There are, however, several bases for either the admission or exclusion of such evidence that should be discussed.
The conviction in the instant case is for driving a motor vehicle upon a public highway while intoxicated. The offense was shown to have occurred on June 8, 1974. Punishment was assessed at thirty (30) days in the county jail and at a fine of $100.00. The jail term was probated under Article 42.13, Vernon’s Ann.C.C.P.
At the trial the State in its case in chief on direct examination elicited, over proper *709objection, from the arresting officer that the appellant had been offered and had verbally refused to take a breath test, and still later on cross-examination inquired of the appellant about the same matter.
The only ground of error urged by the appellant is that the trial court erred in admitting such evidence over objection.
The Cardwell Case, Article 38.22, V.A.C.C.P., Etc.
Appellant relies upon Cardwell v. State, 156 Tex.Cr.R. 457, 243 S.W.2d 702 (1951), and a line of cases following it which hold such evidence of refusal inadmissible.
The State urges that this court take this opportunity to overrule the Cardwell line of cases in light of the holding in Olson v. State, supra. In holding admissible handwriting exemplars, Olson held that the scope of the privilege against self-incrimination in Article I, § 10, Texas Constitution, is identical to that of the Fifth Amendment, United States Constitution, and that state constitutional provision affords the same but no greater rights than the federal constitutional provision.1 Olson overruled several cases, including Trammell v. State, supra, which had held that the self-incrimination privilege of the State Constitution prohibited the admission into evidence of the results of a blood test conducted without an accused’s consent. Olson made clear that there was no state constitutional barrier to subjecting an accused, without his consent, to a chemical test for intoxication, if taken under conditions which comport with due process. In effect it made Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), applicable to Texas.
In Schmerber v. California, supra, the United States Supreme Court held admissible the evidence of the results of a test for blood alcohol content made upon a blood sample drawn from a defendant without his consent. The Court reasoned that the Fifth Amendment extends only to testimonial communications from a defendant, not to real or physical evidence. The Court concluded, “Since the blood test evidence, although an incriminating product of compulsion, was neither petitioner’s testimony nor evidence relating to some communicative act or writing by the petitioner, it was not inadmissible on privilege grounds.”
The Schmerber case, however, emphasized that it was not deciding whether the admission of an accused’s verbal refusal to submit to chemical testing would violate any of the accused’s constitutional rights, including the Fifth Amendment. In fact, it warned that the State may well have to forego evidence of testimonial byproduct of compelling an accused to submit to chemical testing. 384 U.S. at p. 765, note 9, 86 S.Ct. at p. 1833.
The State thus contends that since Schmerber is now applicable to Texas and consent is no longer required to subject a defendant to a blood or breath test, etc., his refusal to take such test should be admissible in evidence, particularly in light of the overruling of Trammell. While the holding in Trammell was consistent with the rule that testimony cannot be introduced or comment made on an accused’s refusal to take a blood test, see Olson v. State, supra, footnote # 48 at p. 772, it is interesting to note that Cardwell v. State, supra, and its progeny have never relied upon Trammell and its progeny.
Since Trammell or the line of cases which followed it were never the basis for any of this court’s decisions prohibiting the State from producing evidence of the accused’s refusal to take a sobriety test, the State’s reliance on Trammell is misplaced.2
*710In Cardwell the court, speaking through Judge Woodley, wrote:
“The State cannot avail itself of the silence or refusal of an accused prisoner as a circumstance tending to establish his guilt.”
The opinion did not further discuss the holding, but cited three cases, Carter v. State, 23 Tex.App. 508, 5 S.W. 128 (1887); Elliott v. State, 152 Tex.Cr.R. 285, 213 S.W.2d 833 (1948); Sharp v. State, 153 Tex.Cr.R. 96, 217 S.W.2d 1017 (1949), none of which involved testimony of a refusal to take a chemical test.3
The cases after Cardwell almost invariably cite either Cardwell or the opinions which followed it, without a discussion or mention of the confession statute or the rule of evidence discussed. See Bumpass v. State, 160 Tex.Cr.R. 423, 271 S.W.2d 953 (1954); Jordan v. State, 163 Tex.Cr.R. 287, 290 S.W.2d 666 (1956); White v. State, 164 Tex.Cr.R. 416, 299 S.W.2d 151 (1957); Brown v. State, 165 Tex.Cr.R. 535, 309 S.W.2d 452 (1958); Watts v. State, 167 Tex.Cr.R. 63, 318 S.W.2d 77 (1958); Saunders v. State, 172 Tex.Cr.R. 17, 353 S.W.2d 419 (1962); Shilling v. State, 434 S.W.2d 674 (Tex.Cr.App.1968); Willeford v. State, 489 S.W.2d 292 (Tex.Cr.App.1973). Cf. Sublett v. State, 158 Tex.Cr.R. 627, 258 S.W.2d 336 (1953). The rule announced in Cardwell has been consistently applied where the State initially elicits such testimony. The rule is recognized but not applied where the defendant brings out such testimony or “opens the door” to such testimony being elicited by the State. See, e. g., Hopkins v. State, 162 Tex.Cr.R. 103, 282 S.W.2d 232 (1955); Strickland v. State, 169 Tex.Cr.R. 633, 336 S.W.2d 185 (1960); Radosevich v. State, 171 Tex.Cr.R. 333, 350 S.W.2d 198 (1961); Lee v. State, 170 Tex.Cr.R. 566, 342 S.W.2d 753 (1961); Turner v. State, 371 S.W .2d 891 (Tex.Cr.App.1963); Wright v. State, 396 S.W.2d 127 (Tex.Cr.App.1965); Polk v. State, 490 S.W.2d 853 (Tex.Cr.App.1973); Nichols v. State, 504 S.W.2d 462 (Tex.Cr.App.1974); Birdwell v. State, 510 S.W.2d 347 (Tex.Cr.App.1974). Cf. Story v. State, 502 S.W.2d 764 (Tex.Cr.App.1973).
Shilling v. State, supra, was the first case which reversed a conviction for violation of the Cardwell rule after the effective date of the new Code of Criminal Procedure (January 1, 1966), which included Article 38.22, Vernon’s Ann.C.C.P., as the confession statute and after the decision in Schmerher v. California, supra. Cardwell and Bumpass were cited with approval, but the new confession statute was not mentioned.
In Willeford v. State, supra, decided after Schmerber and Olson, the court reversed for the introduction of that portion of the arresting officer’s report relating to the defendant’s refusal to take a blood test, although the other portion of the report was admissible under Article 38.24, Vernon’s Ann.C.C.P. No mention was made of *711either Schmerber or Olson.4 The only authority cited was “Cf Lee v. State, 170 Tex.Cr.R. 566, 342 S.W.2d 735 [753].”
It is clear from the above that this court’s decisions prohibiting the State from eliciting testimony concerning an accused’s refusal to take a sobriety test have rested upon the confession statute as well as the rule of evidence which forbids an accused’s silence to be used against him as tending to establish guilt. In the instant case it appears from the record that the appellant verbally refused to take the breath test, and it was this refusal which the State elicited over objection. The present confession statute, Article 38.22, supra, 1967, as amended, has recently been interpreted, as its forerunners were, as designed to prevent the prosecution from using against the accused the testimony of the officer having him under arrest as to a verbal statement made by the accused which the State seeks to use to prove his guilt, even if that statement does not in and of itself amount to a classical confession. See Butler v. State, 493 S.W.2d 190 (Tex.Cr.App.1973). See also Garner v. State, 464 S.W.2d 111 (Tex.Cr.App.1971); Easley v. State, 493 S.W.2d 199 (Tex.Cr.App.1973); Smith v. State, 514 S.W.2d 749, 752 (Tex.Cr.App.1974).
In Weaver v. State, 43 Tex.Cr.R. 340, 65 S.W. 534 (1901), it was held proof of defendant’s refusal, while under arrest, to go into the house and look at the body of deceased was inadmissible.
The State in the instant case would not have elicited the evidence of a verbal refusal to take a breath test while under arrest unless the State believed the same to be harmful to the appellant and inculpatory and tended to show his guilt. Even though the refusal itself did not amount to a confession, it was offered as an inference of a guilty mind. It is difficult to see any relevancy in the statement of refusal other than to provide such an inference.5
In Garner v. State, supra, it was stated:
“. . .in construing our confession statutes this Court has excluded any act tantamount to or in the nature of a confession and to any unwarned statement even though it lacks the essential elements of a confession. . . . ”
See also Butler v. State, supra, and cases there cited; Smith v. State, supra.
Since the decisions in Garner and Butler giving to Article 38.22, supra, the same interpretation as has been applied to our earlier confession statutes, the Legislature has met and adjourned without amending the statute. It must be presumed that the Legislature approves the interpretation given to the statute by this court. See 82 C.J.S. Statutes § 816, p. 549.
I would adhere to the Cardwell line of cases and reverse the judgment of conviction in the instant case.
Refusal by Silence
While the refusal in the instant case took the form of a verbal refusal to take the test, it would appear that a refusal by silence or by standing mute when offered the test would also be inadmissible. And this would be particularly true after an accused has been given warnings in accordance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), or Articles 38.22 and 15.17, Vernon’s Ann.C.C.P.
In Miranda v. Arizona, supra, it was written:
“In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he *712stood mute or claimed his privilege in the face of accusation.” Footnote # 37, 384 U.S. at p. 468, 86 S.Ct. at p. 1625.
“Manifestly, it is intolerable to penalize an accused for remaining silent or refusing to make a statement to police authorities after being advised of his constitutional right to remain silent in the face of accusation. It is elementary that a person arrested upon a charge of crime, and thus accused thereof, has an absolute and inviolable constitutional right under the Fifth Amendment, applicable to the states by operation of the Fourteenth Amendment (Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653), to remain silent. Indeed Miranda mandates, among other things, that an accused be so advised before interrogation by law enforcement officials. It would be an intolerable anomaly if an accused’s exercise of his constitutional right to remain silent, of which he must be informed before any questioning by law enforcement officials concerning the offense for which he was arrested, could thus be turned against him.” Harrison v. State, 532 S.W.2d 566, 571 (Tenn.Cr.App.1975). See also State v. Beck, 289 Minn. 287, 183 N.W.2d 781 (1971). Cf. State v. Roberts, 296 Minn. 347, 208 N.W.2d 744 (1973).
It has long been established in this State that the silence of the accused while under arrest normally cannot be used in evidence against him as a circumstance indicating guilt. De Lira v. State, 164 Tex.Cr.R. 194, 297 S.W.2d 953 (1957); 1 Branch’s Ann.P.C., 2nd ed., § 87, pp. 91-92. See also Hicks v. State, 493 S.W.2d 833 (Tex.Cr.App.1973).
In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the question presented was whether a state prosecutor may seek to impeach a defendant’s exculpatory story, told for the first time at trial, by cross-examining the defendant about his failure to have told the story to the arresting officer after receiving Miranda warnings at the time of his arrest. There the Supreme Court concluded that the use of the defendant’s post-arrest silence in this manner violated the due process clause of the Fourteenth Amendment.
The Court wrote:
“Silence in the wake of these warnings may be nothing more than the arrestee’s exercise of these Miranda rights. Thus, every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested. See United States v. Hale, 422 U.S. [171], at 177, 95 S.Ct. [2133, at 2137, 45 L.Ed.2d 99]. Moreover, while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.”
If a defendant’s silence under arrest under these circumstances cannot be used to impeach the defendant at trial, surely his silence cannot be used against him in the prosecution’s case in chief.
It would be highly inconsistent to say that a refusal by silence to take a chemical test cannot be used, but where the law enforcement officials compel a verbal refusal, a testimonial communication, such refusal can be shown. The rule cannot be split in two.
Evidence of Refusal Inadmissible Under Implied Consent Statute
There exists still another reason that appellant’s refusal to take a breath test was inadmissible.
Article 67011-5, Vernon’s Ann.C.S., is the Texas implied consent statute relating to a chemical test or other tests of the breath of any person who operates a motor vehicle upon a public highway of this State to determine the alcoholic content of his blood if arrested for any offense arising out of acts alleged to have been committed while a person is driving a motor vehicle while under the influence of intoxicating liquor. The statute provides that if any person under arrest shall refuse to submit to a *713chemical breath test upon the request of a law enforcement officer “none shall be given.” The statute provides in detail, however, for a procedure whereby a person who refuses such breath test may have his license suspended for as long as a year. This is the statutory penalty for the refusal to take the breath test. The statute makes no provision that the refusal to take the test is admissible into evidence in a criminal prosecution. The statute clearly gives the arrested person the choice of taking the breath test or refusing it, though the refusal carries with it resultant consequences.
Implicit in our implied consent statute is the right to refuse to submit to a test and, a fortiori, the requirement that a choice be made between submitting to the test or suffering the consequences of such refusal. See and cf. State v. Buckingham, 240 N.W.2d 84 (S.D.1976).
Recently the South Dakota Supreme Court wrote:
“Certainly it is unfair to create by statute a right not to submit to a chemical test and to allow the accused to exercise that right and then in open court before a jury to permit testimony concerning that refusal which can all too easily work in the minds of the jury members to the prejudice of the defendant.” State v. Oswald, 241 N.W.2d 566, 569 (S.D.1976).
See also City of Brookings v. Jensen, 243 N.W.2d 71 (S.D.1976).
In State v. Severson, 75 N.W.2d 316 (N.D.1956), the Supreme Court of North Dakota wrote:
“Whether the statute implies that evidence of a refusal to take a test may be not received in evidence against a defendant is a question that is not without difficulty. We are of1 the opinion, however, that when the legislature granted an accused person a choice of whether he would submit to such a test, it intended that the choice should be absolutely free and not encumbered by a liability. If the fact that an accused person chooses not to take a test can be put in evidence and argued to the jury as evidence of guilt, then the statute places the defendant in a position where willy-nilly, he must risk providing evidence for the prosecution by submitting to a test or certainly provide it by refusing to take one, although his reason for refusal may have no relation to the question of guilt or innocence.”
In People v. Hayes, 64 Mich.App. 203, 235 N.W.2d 182, 184, the Michigan Court of Appeals in 1975 wrote:
“Further, and more importantly, the admission of a defendant’s refusal to submit to an intoxication test would render nugatory the choice which the statute provides him. Under § 625a, an individual arrested for drunk driving has a choice. He can either submit to a test the results of which could create a virtually irrefutable presumption of guilt against him, or he can refuse the test and suffer the revocation. If the fact that a defendant has chosen not to submit to a test can be placed before the jury as an inference of his guilt, then he will be put in the position of having to risk providing evidence for the prosecution by submitting to the test or of certainly providing it by refusing to submit. It would be fundamentally unfair to put a defendant in such a ‘damned if he does, damned if he doesn’t’ position. The Legislature provided a definite choice, and we cannot render a decision which would make that choice an illusory one. See e. g., State v. Ingram, 67 N.J.Super. 21, 169 A.2d 860 (1961); State v. Seversen (sic), 75 N.W.2d 316 (N.D.1956) . . . Whether the statute speaks in terms of a ‘right’ to refuse or a ‘choice’ with a resultant penalty, admitting a defendant’s refusal into evidence will vitiate the ability to refuse provided to him by the statute.”
In Duckworth v. State, 309 P.2d 1103 (Okl.Cr.1957), the Oklahoma Court of Criminal Appeals noted:
“. . . the defendant’s refusal to take the test was used by the state in its case in chief for purely prejudicial purposes. The accused’s refusal should have ended the inquiry on the subject. It ill behooves the courts to say you have a right to refuse to do something, which *714may prove either 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.” See also Howell v. State, 528 P.2d 1392 (Okl.Cr.1974), and People v. Stratton, 286 App.Div. 323, 143 N.Y.S.2d 362 (1955); People v. Paddock, 29 N.Y.2d 504, 323 N.Y.S.2d 976, 272 N.E.2d 486 (1971).
In my opinion we have a Texas statute which grants an absolute right to an arrested person to refuse to submit to breath testing to determine the alcoholic content of his or her blood, albeit not without certain consequences. The consequences of such refusal, however, are provided by statute and they nowhere include the admissibility of evidence of such refusal in the trial of driving while intoxicated case. The Legislature specified license revocation as the consequence of refusing to take a breath test. I cannot find the admission of a defendant’s refusal to be an added consequence in the absence of a definitive legislative provision to that effect.
In the instant case the appellant did what he had an absolute statutory right to do— refuse the breath test — and evidence of that refusal should not be used to create any unfavorable inference against him. See People v. Stratton, supra.
No Evidentiary Basis for Admission of Refusal?
While the foregoing reasons clearly demonstrate my reasons for concurring in the reversal of the instant case, I would note, in passing, that courts in other jurisdictions have found no evidentiary basis for the admission of a defendant’s refusal. This is so because the probative value of a refusal to take a chemical test for intoxication is too low in comparison to its prejudicial effect. See Duckworth v. State, supra; People v. Hayes, supra; Crawley v. State, 219 Tenn. 707, 413 S.W.2d 370 (1967). As pointed out in 78 Yale Law Journal 1074 (Constitutional Limitations on the Taking of Body Evidence) evidence of a refusal to take a test for intoxication is inferior evidence and is in general unduly prejudicial to the defendant. There it was written:
“The evidence of a suspect’s refusal to cooperate is less reliable than the evidence produced by a body evidence examination since a suspect may refuse to cooperate for reasons other than a fear that the examination would yield evidence of guilt. The jury, however, may often regard this deficiency in probative value and ascribe undue weight to the evidence of refusal because of an exaggerated sensitivity to the evidence as an indication that the defendant believes that he is guilty. Moreover, the jury may be tempted to convict the defendant of the substantive offense charged as punishment for the collateral and comparatively minor offense of non-compliance with an examination order. The possibility for prejudice is increased if the suspect had an innocent reason for refusing the examination but cannot personally present his explanation to the jury because for other reasons, he exercises his privilege not to testify.”
Constitutional Basis for Exclusion of Evidence of Refusal?
Since there is an adequate basis for the reversal on nonconstitutional grounds, the question of whether the admission of the verbal refusal also violated the Fifth Amendment and Article I, § 10, Texas Constitution, need not be reached. Courts in three jurisdictions, however, have excluded evidence of a refusal to take chemical test for intoxication on the ground that it is a byproduct of the compulsion to take the test and is testimonial in nature. They concluded, based on the language in Schmerber, that evidence of refusal constitutes compulsory self-incrimination in violation of the Fifth Amendment or state constitutional privileges. Gay v. City of Orlando, 202 So.2d 896 (Fla.Ct.App.1967); Johnson v. State, 125 Ga.App. 607, 188 S.E.2d 416 (1972); State v. Andrews, 297 Minn. *715260, 212 N.W.2d 863 (1973). Certainly when a defendant says, “No, I will not take any test,” or “Thanks, but I will refuse that test,” etc., he is testifying against himself and this is clearly testimonial evidence. See and cf. State v. Andrews, supra.
For the reasons stated above, I concur in the reversal of the judgment of conviction.
. In Olson the defendant argued that the court had improperly admitted his handwriting exemplars into evidence in violation of Article I, § 10, Texas Constitution, which he claimed was broader in scope than the Fifth Amendment. Among the cases cited in support of the contention that the state constitutional provision had been given a broader interpretation was Trammell v. State, 162 Tex.Cr.R. 543, 287 S.W.2d 487 (1956).
. Olson, in overruling Trammell, held that the Texas constitutional self-incrimination privilege extends its protection only to testimonial compulsion, thus compelling, for example, a blood test, if taken under conditions which comport *710with due process, does not constitute requiring an accused to “give evidence against himself.” Although there is no longer any state constitutional requirement that a person consent to a blood, breath or urine test to determine intoxication, attention must be given to Article 6701/ -5, Vernon’s Ann.C.S. (former Article 802f, Vernon’s Ann.P.C.), which provides for the implied consent of motorists for the taking of a breath test, but provides that in the taking of all other chemical tests to determine alcoholic content of his blood there is no implied consent though the motorist “may consent.” The Attorney General in Opinion H-736 (Nov. 13, 1975) recognized there was no constitutional limitation, but held the statute above described prohibited a blood sample being taken from a person suspected of a traffic related offense without the consent of such person.
. In Carter evidence was introduced that after arrest the defendant refused to divulge his name. Citing the confession statute then in effect, Article 750, C.C.P., 1879, the conviction was reversed. In Elliott v. State, supra, the defendant made an oral confession he had stolen the cattle prior to being warned as required by the confession statute (Article 727, Vernon’s Ann.C.C.P., 1925). The conviction was set aside. Sharp involved both a refusal to answer an officer’s question as to whether the defendant was intoxicated and a later statement that he was intoxicated. The case was reversed both on the confession statute (Article 727, Vernon’s Ann.C.C.P., 1925) and the rule of evidence that prohibits admission by silence.
. In Polk and Nichols, supra, where the rule in Cardwell was recognized but not applied because of the defendant’s action in initiating the inquiry on the sobriety tests, the decision in Olson was merely noted. It was not determinative of the outcome of either case.
. See 8 J. Wigmore, Evidence, 2272-73 (McNaughton rev. ed. 1951) (failure to produce evidence gives rise to the inference that the evidence is unfavorable).