(concurring in result).
I concur in the result.
I would hold, however, that SDCL 32-23-10.1 is violative of the self-incrimination provisions of S.D. Const, art. VI, § 9, for all of the reasons stated in the original decision in State v. Neville, 312 N.W.2d 723 (S.D.1981). Even though SDCL 32-23-10.1 does not infringe upon rights in the United States Constitution, South Dakota v. Neville, 459 U.S. -, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983), this state is free to provide greater protections under our state constitution than are required under the federal constitution. Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975).
The option afforded under the old statute (SDCL 32-23-11) involved a defendant losing his driving privileges for one year upon refusal to submit to a chemical test; we have determined this to be constitutional because no one has the “right” to drive. Peterson v. State, 261 N.W.2d 405 (S.D.1977); Beare v. Smith, 82 S.D. 20, 140 N.W.2d 603 (1966); Chmelka v. Smith, 81 S.D. 40, 130 N.W.2d 423 (1964) (driving is a privilege granted by the State which is subject to reasonable regulation under the police power). The present statute, on the other hand, goes far beyond revocation of driving privileges and provides that upon refusal to take a chemical test, such refusal can be used against the defendant in a criminal trial. While no one has a “right” to drive, a defendant in a criminal trial does have a state constitutional right not to be compelled to give evidence against himself. SDCL 32-23-10.1 forces a defendant to either take the test (the results of which can be used against him at a criminal trial) or refuse the test, with the result that this very damaging evidence of refusal can be used against him at trial. Therefore, SDCL 32-23-10.1 is not just an “additional penalty” for making the choice of not taking the chemical test; it goes to the very heart of the constitutional right against self-incrimination.