dissenting.
I respectfully dissent from the order of the court overruling the motion for rehearing in this case. The State rarely files a motion for rehearing in this court. The Attorney General points out the necessity for clarification in this case because the holding of the majority opinion extending the right of counsel to implied consent cases will create confusion on the part of the law enforcement officers and materially interfere with the enforcement of the law. I agree.
The court’s ruling in this case states in effect that in an appropriate situation a driver on a public highway may condition the giving of the test required under the Implied Consent Law until he has consulted his attorney. It must be kept in mind that the right to drive on a public highway is not a constitutional one, and that the State may reasonably regulate or even deny the driving of an automobile on a public highway under certain conditions. It is fundamental that an implied consent proceeding upon the refusal to submit to a chemical test to determine, intoxication is a civil and administrative procedure and that the United States and state constitutional guarantees of right to counsel are not applicable. §§ 39-727.03 to 39-727.12, R. R. S. 1943; Ziemba v. Johns, 183 Neb. 644, 163 N. W. 2d 780; Sixth Amendment to the Constitution of the United States; *577Art. I, § 11, Constitution of Nebraska; Finocchairo v. Kelly, 11 N. Y. 2d 58, 226 N. Y. S. 2d 403, 181 N. E. 2d 427, certiorari denied, 370 U. S. 912, 82 S. Ct. 1259, 8 L. Ed. 2d 405; Gottschalk v. Sueppel, 258 Iowa 1173, 140 N. W. 2d 866; Schmerber v. California, 384 U. S. 575, 86 S. Ct. 1826, 16 L. Ed. 2d 908.
This court recently said in Ziemba v. Johns, supra, that “* * * the same motor vehicle operation may give rise to two separate and distinct proceedings. One is a civil and administrative licensing procedure instituted by the Director of Motor Vehicles to- determine whether a person’s privilege to drive is revoked. The other is a criminal action instituted in the appropriate court to determine whether a crime has been committed. Each section proceeds independently of the other and the outcome of one action is of no consequence to the other.” (Emphasis supplied.)
In Finocchairo v. Kelly, supra, the only issue was whether the driver was entitled to the advice of counsel before deciding to submit or not to submit to a blood test for intoxication. The New York court held: “So far as the revocation of petitioner’s license for his conditional refusal to take a blood test is concerned, the constitutional rights of petitioner were not invaded because of the refusal of his request for counsel.”
After an extended discussion of the authorities the Iowa court in Gottschalk v. Sueppel, supra, held as follows: “III. There is no merit to- plaintiff’s contention he was deprived of due process of law by not having the opportunity to confer with his attorney before electing to consent to a chemical test or to refuse.”
The Gottschalk case was cited as authority in Ziemba v. Johns, supra, and in turn the Gottschalk case cited the Finocchairo case, supra.
Valid as the distinctions are between an implied consent proceeding and a criminal prosecution, and persuasive as are the authorities cited above on the right to counsel, this case need not rest on any such distinction.
*578The problem of the denial of the right to counsel before the taking of a blood test was before the United States Supreme Court in the leading case of Schmerber v. California, supra. This case was an actual criminal prosecution in which the Supreme Court of the United States had before it a drunk driving conviction based upon the taking of a blood test of the defendant. The defendant Schmerber was arrested and was required to submit to a blood test notwithstanding the fact that he refused to take the test on the advice of counsel. The results of the blood test were admitted in evidence over objection. He asserted that he was denied due process of law, that the taking of the test violated his privilege against self-incrimination, and further since the test was taken over his objection based on advice of counsel he was in fact denied the right to counsel guaranteed by the Sixth Amendment to the United States Constitution.
The United States Supreme Court affirmed the conviction holding that the taking of the blood test did not involve a matter of self-incrimination, and that since due process and self-incrimination were not involved in taking the test then neither was the constitutional provision of right to counsel. The court said: “This conclusion (that due process and self-incrimination are not involved in the taking of a blood test) also answers petitioner’s claim that, in compelling him to submit to the test in face of the fact that his objection was made on the advice of counsel, he was denied his Sixth Amendment right to the assistance of counsel. Since petitioner was not entitled to assert the privilege, he has no greater right because counsel erroneously advised him that he could assert it. His claim is strictly limited to the failure of the police to respect his wish, reinforced by counsel’s advice, to be left inviolate.”
Stated in common sense, terms, the above authorities hold what is so abundantly clear, namely, that defendant has no constitutional guarantee of right to- counsel in *579order to assist him in determining whether he will comply with the Implied Consent Law. The privilege to drive an automobile on a public highway, by the declared public policy of the State of Nebraska, is subject to the reasonable regulations and requirements of the Implied Consent Law. These requirements are manifestly enacted and designed in the pursuance of a policy of public safety on the public highways in the State of Nebraska.
If the court’s ruling in this case means, as it apparently does, that in an “appropriate”" situation which has yet to be defined the driver may condition the giving of a test until he has consulted his attorney, then we are faced with a situation that will result in emasculation of the enforcement of the statute. This is so because if a driver has a right to consult his attorney it follows that the consultation must be effectual and no imagination is required to foresee the amount of time involved. It will not only prevent law enforcement officers from securing constitutionally permissible incriminating evidence in drunk driving prosecutions but more important it probably will effectively prevent the disciplining and control of the borderline drinking driver. It requires the State to furnish counsel to a defendant in order to determine whether he shall comply with the law. It injects into the practical enforcement situation a requirement that a police officer determine at his peril if he may safely await the convenience of the defendant in consulting legal counsel and thereby risk the defeat of the purpose of the law.
The issue of the right to counsel was not raised in this case at any stage of the proceedings. I submit, therefore, that we should either rehear this case, or eliminate what appears to me to be unsupported obiter dictum.
Carter and Newton, JJ., concur in this dissent.