(dissenting).
Petitioner Rodriguez contends that the implied consent statute requires an officer to request a blood test from a motorist before any other chemical test can be required.
The provision to be interpreted is § 321-B.3, Code, 1971. This section consists of five sentences. The first sentence states:
Any person who operates a motor vehicle in this state upon a public highway, under such circumstances as to give reasonable grounds to believe the person *420to have been operating a motor vehicle while under the influence of an alcoholic beverage, shall be deemed to have given consent to the withdrawal from his body of specimens of his blood, breath, saliva, or urine, and to a chemical test or tests thereof, for the purpose of determining the alcoholic content of his blood, subject to the provisions hereinafter set out.
This sentence constitutes the implied grant of consent by a motorist. The consent is to the withdrawal of four different specimens : blood, breath, saliva, or urine. The consent to withdrawal of a specimen of breath, saliva, or urine is not conditioned on a prior request for a specimen of blood.
The second sentence of the section states:
The withdrawal of such body substances, and the test or tests thereof, shall be administered at the written request of a peace officer having reasonable grounds to believe the person to have been operating a motor vehicle upon a public highway of this state while under the influence of an alcoholic beverage, and only after the peace officer has placed such person under arrest for the offense of operating a motor vehicle while under the influence of an alcoholic beverage.
Here conditions are actually imposed: the officer must make written request for withdrawal of body substances, he must have reasonable grounds to believe the motorist to have been operating while under the influence of an alcoholic beverage, and he must have placed the motorist under arrest for that offense. But no condition is imposed that the officer request a blood test before any of the other tests can be required.
The third sentence is this:
If such person requests that a specimen of his blood not be withdrawn, then a specimen of his breath, saliva, or urine shall be withdrawn at the written request of such peace officer; provided, however, that if such person refuses to submit to any chemical testing, no test shall be given, and the provisions of section 321B.7 shall apply.
This sentence grants a motorist absolute power to refuse a blood specimen without endangering his driver’s license. But he has no corresponding power to refuse withdrawal of breath, saliva, or urine specimens without subjecting his license to revocation. Thus if the officer demands a urine specimen, no absolute power to refuse exists, nor does such power exist to refuse saliva or breath samples.
Petitioner would in effect add these italicized words to this third sentence: The officer must first offer a blood test and if such person requests that a specimen of his blood not be withdrawn, thereafter a specimen of his breath, saliva, or urine shall be withdrawn, etc. The difficulty with petitioner’s reading of the sentence is that the legislature did not see fit to use those italicized words or add that condition. Cf. State, Dep’t of Highways v. McWhite, 286 Minn. 468, 470, 176 N.W.2d 285, 287.
The third sentence does give a motorist a right to refuse all tests. Actually, the right is not without burdens, for by exercising the right the motorist subjects his license to revocation under § 321B.7, except for refusal of a blood specimen. Perhaps the right is granted to prevent forcible removal of a specimen of breath, saliva, or urine. See Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908.
The fourth sentence of the section states:
Subject to the right of a person to refuse a blood test or to refuse to submit to any chemical testing, such peace officer may determine which of said substances shall be tested; and if he requires a breath test, he may also require a test of one other of said substances.
*421Here the legislature expressly grants the officer the choice of the test to be given, subject to these limitations: the motorist has his absolute power to refuse a blood specimen without jeopardizing his license and he has his right to refuse all tests without subjecting himself to forcible withdrawal of a specimen. The first words of the sentence, “Subject to the right of a person to refuse a blood test”, are not a statement that “The officer must first offer a blood test.”
This fourth sentence does not in fact limit the officer’s choice of tests to the other three tests by requiring a prior demand and refusal of the blood test. The provision is not that the officer may determine which “of the remaining three substances” shall be tested; it is that the officer may determine “which of said substances” shall be tested.
If the officer must first offer the blood test, and the motorist accepts it, the officer would have no choice of tests at all. Then how could it be said that the “peace officer may determine which of said substances shall be tested” ?
If the officer selects and obtains a breath test, the fourth sentence allows him also to demand one other of the said substances (although the motorist may of course absolutely refuse a blood specimen). Thus if the officer demands and obtains a blood, saliva, or urine specimen, he may not demand one other of the specimens.
The final sentence states:
However, if such peace officer fails to provide such test within two hours after such arrest, no test shall be required, and there shall be no revocation under the provisions of section 321B.7.
This sentence contains no indication that a blood test is prerequisite to other tests. (Under the evidence in the case at bar, the Commissioner could find that the breath test was requested within two hours.)
Thus the statute contains no provision requiring that a blood test be first offered. Such a provision might or might not be a good one, but that is a policy matter for the legislature.
The judgment should be reversed.
LeGRAND and REES, JJ., join in this dissent.