(concurring specialty)-
I concur in the result the court reaches on all three of the certified questions but state separately my views on the first question: whether Minn.Stat. § 169.121, subd. 2(b) (1982), which permits the introduction of evidence of the absence of tests in prosecutions for driving while under the influence, is a violation of a defendant’s constitutional privilege against self-incrimination.
The United States Supreme Court has now answered the same question in South Dakota v. Neville,-U.S.-, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983), in the negative. It is now time for us to overrule State v. Andrews, 297 Minn. 260, 212 N.W.2d 863 (1973), cert. denied, 419 U.S. 881, 95 S.Ct. 146, 42 L.Ed.2d 121 (1974), which — but for the narrow distinction involved in this case — would continue to be a contrary answer in the affirmative.
There is no substantive difference in the state statutes considered in Neville and Andrews. The South Dakota statute considered in Neville specifically provided that refusal to submit to a blood alcohol test “may be admissible into evidence at the trial” on a charge for driving under the influence of alcohol. S.D.Comp.Laws Ann. § 32-23-10.1. Minn.Stat. § 169.121, subd. 2 (1969), as it was framed at the time of the Andrews decision, did not contain that explicit provision but just as explicitly had been amended to delete a prior proviso that “the refusal to permit the taking of specimens for such chemical analysis shall not be admissible in evidence.” Act of June 7, 1971, ch. 893, § 2, 1971 Minn.Laws 1811, 1812-13.
The central issue in Andrews was whether Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), should change an earlier decision in State v. McCarthy, 259 Minn. 24, 104 N.W.2d 673 (1960), that such evidence violates a defendant’s right not to be compelled in any criminal case to be a witness against himself. The majority said that it did not. Two dissenting justices (Peterson and Otis) said that it should; Chief Justice Knutson, concurring specially, said that in McCarthy and Andrews it was a mistake to base decision on constitutional grounds (rather than on construction of statutes in effect at the times of those decisions).
The South Dakota Supreme Court, in declaring its own statute unconstitutional, relied on Andrews and Dudley v. State, 548 S.W.2d 706 (Tex.Cr.App.1977), expressing the minority view1 that the refusal to sub*186mit to a requested blood test is “a tacit or overt expression and communication of defendant’s thoughts,” State v. Neville, 312 N.W.2d 723 at 726. Whatever doubt may have existed at the time of Andrews with respect to the full reach of Schmerber was set at rest with this opening paragraph of Neville:
Schmerber v. California, 384 U.S. 757 [86 S.Ct. 1826, 16 L.Ed.2d 908] (1966), held that a State could force a defendant to submit to a blood-alcohol test without violating the defendant’s Fifth Amendment right against self-incrimination. We now address a question left open in Schmerber, id., at 765, n. 9 [86 S.Ct., at 1833, n. 9], and hold that the admission into evidence of a defendant’s refusal to submit to such a test likewise does not offend the right against self-incrimination.
-U.S. at-, 103 S.Ct. at 918.
The context in which the United States Supreme Court considered this important question is expressed in these unchallenged words of Justice O’Connor, writing for the court:
The situation underlying this case— that of the drunk driver — occurs with tragic frequency on our Nation’s highways. The carnage caused by drunk drivers is well documented and needs no detailed recitation here. This Court, although not having the daily contact with the problem that the state courts have, has repeatedly lamented the tragedy. See Breithaupt v. Abram, 352 U.S. 432, 439 [77 S.Ct. 408, 412, 1 L.Ed.2d 448] (1957) (“The increasing slaughter on our highways, most of which should be avoidable, now reaches the astounding figures only heard of on the battlefield”); Tate v. Short, 401 U.S. 395, 401 [91 S.Ct. 668, 672, 28 L.Ed.2d 130] (1971) (BLACK-MUN, J., concurring) (deploring “traffic irresponsibility and the frightful carnage it spews upon our highways”); Perez v. Campbell, 402 U.S. 637, 657 and 672 [91 S.Ct. 1704, 1715 and 1722, 29 L.Ed.2d 233] (1971) (BLACKMUN, J., concurring) (“The slaughter on the highways of this Nation exceeds the death toll of all our wars”); Mackey v. Montrym, 443 U.S. 1, 17-18 [99 S.Ct. 2612, 2620, 61 L.Ed.2d 321] (1979) (recognizing the “compelling interest in highway safety”).2
-U.S. at-, 103 S.Ct. at 920.
The statute considered in today’s case is distinguished from those in Neville and Andrews by its limited provision that the absence of chemical tests may be cryptically disclosed with the express direction that the jury is not to draw any adverse inference therefrom. The broad principle announced in Neville would, of course, affirm the constitutionality of this statute without reliance on the textual differences in the statutes. Our legislature would be then more certain of its power more effectively to provide for enforcement of laws necessary to control “the carnage caused by drunk drivers.”
. As the United States Supreme Court noted:
Most courts applying general Fifth Amendment principles to the refusal to take a blood test have found no violation of the privilege against self-incrimination. Many courts, following the lead of Justice Traynor’s opinion for the California Supreme Court in People v. Suddah, [Sudduth ] 65 Cal.2d 543 [55 Cal. *186Rptr. 393], 421 P.2d 401 (1966), cert. denied, 389 U.S. 850 [88 S.Ct. 43, 19 L.Ed.2d 119] (1967), have reasoned that refusal to submit is a physical act rather than a communication and for this reason is not protected by the privilege. As Justice Traynor explained more fully in the companion case of People v. Ellis, 65 Cal.2d 529 [55 Cal.Rptr. 385], 421 P.2d 393 (1966) (refusal to display voice not testimonial), evidence of refusal to take a potentially incriminating test is similar to other circumstantial evidence of consciousness of guilt, such as escape from custody and suppression of evidence.
-U.S. at-, 103 S.Ct. at 921.
. Justice Stevens, joined by Justice Marshall, although dissenting for the reason that the judgment of the South Dakota Supreme Court was sustainable on a non-federal ground — on grounds not involving the merits — stated: “The Court is understandably anxious to do its part in curtailing the ‘carnage caused by drunk drivers.’ * * * I sympathize with that concern, but it does not justify the rendition of an advisory opinion on a constitutional issue.”