concurring.
Although the majority speaks in terms of physical evidence “destroyed” by the State or evidence which has become unavailable through the State’s neglect or intentional alteration, Tanner’s claim involves existing physical evidence which was available for scientific evaluation. Thus, much in the mode of the Wildean observation that some historians write about events which never occurred, Tanner’s appeal has been disposed by some legal principles which are inapplicable.
As noted, Tanner was charged with violation of Neb. Rev. Stat. § 39-669.07 (Supp. 1987), the offense of drunk driving or one’s operating a motor vehicle while such operator has a “concentration of ten-hundredths of 1 gram or more by weight of alcohol per 100 milliliters of [the operator’s] blood,” or while such operator is “under the influence of alcoholic liquor,” that is, “intoxicated,” which means that as the result of drinking alcohol, the operator of a motor vehicle experiences an appreciable loss of normal control over bodily and mental faculties during operation of the vehicle. See State v. Johnson, 215 Neb. 391, 338 N.W.2d 769 (1983).
In conjunction with Tanner’s arrest for drunk driving, the *898State contemporaneously obtained a sample of Tanner’s blood as evidence to prove the offense charged. In prosecutions for felonies and misdemeanors punishable by imprisonment, which includes drunk driving in Nebraska, a defendant may request certain physical evidence, such as a sample of the defendant’s blood which the State has acquired, and obtain the physical evidence from the State for independent testing by the defendant’s expert, subject to appropriate safeguards imposed by the trial court. See Neb. Rev. Stat. § 29-1913(1) (Reissue 1985). Thus, pursuant to § 29-1913(1), as a part of the discovery process provided in Nebraska criminal procedure, the defendant, by timely motion in a trial involving jeopardy to a defendant’s liberty, is entitled to have an expert of the defendant’s selection, but subject to appropriate safeguards imposed by the trial court, independently examine, test, or analyze physical evidence which is in the State’s custody or possession and which may be subject to varying expert opinion. State v. Adkins, 280 S.E.2d 293 (W. Va. 1981); Sabel v. State, 248 Ga. 10, 282 S.E.2d 61 (1981); State v. Davis, 399 So. 2d 1168 (La. 1981); People v White, 40 N.Y.2d 797, 358 N.E.2d 1031, 390 N.Y.S.2d 405 (1976). If there is relevant evidence presented establishing that a valid scientific test cannot be performed on physical evidence which is subject to the discovery process in a criminal proceeding, a court may deny a defendant’s request that physical evidence be independently examined, tested, or analyzed by the defendant’s expert. Roberts v. State, 243 Ga. 604, 255 S.E.2d 689 (1979).
On July 19, 1988, pursuant to Tanner’s discovery motion under § 29-1913(1), the court ordered the State to produce the sample of Tanner’s blood for testing by Tanner’s expert. Without any intervening action by the court or change in the situation, as far as the record reflects, on July 21 the prosecutor, notwithstanding the existing discovery order for production of Tanner’s blood sample for testing by Tanner’s expert, filed a “supplemental reply” to Tanner’s discovery motion and, for the first time, claimed and alleged that Tanner’s blood sample had “clotted during the initial testing” and, therefore, “the blood sample in the possession of the State of Nebraska is not suitable for further testing.” At a hearing on August 11, the State *899offered no proof to substantiate the allegations in its supplemental reply to Tanner’s discovery motion. Instead, as the majority notes, the prosecutor represented to the court that “the blood sample had coagulated prior to or during the initial testing and was thus unsuitable for accurate testing,” but that the “initial test of the coagulated blood showed a .173 blood-alcohol content.” (Emphasis supplied.) It is peculiar to the point of absolutely amazing that if, as the majority recounts, Tanner’s blood sample had coagulated before the State’s test on the sample, the State, nonetheless, achieved “ [a]n initial test of the coagulated blood [which] showed a .173 blood-alcohol content.” Yet, the State maintained that Tanner’s coagulated blood sample was unsuitable for testing. Quite obviously, coagulation never impeded or prevented testing by the State. Apparently, the State tested the coagulated sample of Tanner’s blood, which, after the State’s testing, coagulated even further so that any additional testing was “unsuitable” or impossible. Such a bloody phenomenon, although perhaps a scientific possibility, boggles the mind of those untrained in serology.
Although the State discarded the claim that Tanner operated a motor vehicle while he had a blood-alcohol concentration of “ten-hundredths of 1 gram,” there remained the allegation that Tanner was “under the influence of alcoholic liquor” or intoxicated when he was driving the vehicle. After an appropriate test or analysis of Tanner’s blood sample and a determination of the alcohol level in Tanner’s blood at the time of his arrest, an expert would have scientific information as the basis for an opinion whether Tanner was intoxicated during operation of the vehicle. Whether Tanner’s blood sample, which was admittedly in the State’s possession, would have afforded such information was ostensibly unknown to the trial court and, with due deference, is most likely unknown to this court. Regarding the sample of Tanner’s blood, susceptibility to testing and analysis rested in the province of an expert and not in the prosecutor’s unsubstantiated assertions. When an individual’s liberty is jeopardized by prosecution for a criminal offense, proof, not a prosecutor’s palaver, should govern the outcome. Without relevant information for the exercise of an *900independent determination necessary for the efficacious discovery process in criminal cases, especially under circumstances such as those present in Tanner’s case, a trial court is reduced to the status of a forensic functionary for a prosecutor.
Consequently, the more plausible solution to the problem presented in Tanner’s appeal would be the production of Tanner’s blood sample, which was in the State’s possession, for testing by Tanner’s expert to determine whether the blood sample had any scientific value. If Tanner’s expert concluded that the blood sample had become unsusceptible for testing due to the State’s neglect or intentional alteration, the trial court, on acceptance of the conclusion by Tanner’s expert, would be "in a position to decide what action should be taken as a consequence of the State’s impropriety concerning the blood sample. In all this, the fact remains that in accordance with the right to discovery under § 29-1913(1) concerning production and independent testing or analysis of physical evidence in the State’s possession, the discovery process in criminal cases and the order for production in Tanner’s case should not have been frustrated or thwarted by the State’s conduct displayed in the case now before us.
Next, the majority states: “Moreover, because Tanner did not demand that the sample be produced by the State so that its condition could be verified by his experts once it was learned that the sample had coagulated, he waived its production.” The implication is that once the State asserted that Tanner’s blood sample had coagulated, Tanner, at the risk of waiving the avails of the previous and existing production order, was required to demand production of the allegedly coagulated blood sample. In short, according to the majority, Tanner had to make the additional request that the State comply with the court’s existing discovery order — a request that one bound by a court’s order comply with the order. If one disregards the legal redundancy inherent in the necessity of a request for a court’s order to comply with the court’s previous order, Tanner’s conduct, nevertheless, constituted a waiver of his right to production of the blood sample. “A waiver is the voluntary and intentional relinquishment of a known right, privilege, or *901claim, and may be demonstrated by or inferred from a person’s conduct.” State v. Kennedy, 224 Neb. 164, 170, 396 N.W.2d 722, 726 (1986). By not standing on discovery rights under the court’s existing order and by proceeding to trial without objection in the face of the State’s failure to comply with the discovery order, which authorized independent testing by Tanner’s expert, Tanner waived the discovery order and his right to complain on account of the State’s noncompliance with the order. See, Butler v. Pettigrew, 409 F.2d 1205 (7th Cir. 1969); Price v. Maryland Cas. Co., 561 F.2d 609 (5th Cir. 1977); Reuber v. United States, 787 F.2d 599 (D.C. Cir. 1986); Lapenna v. Upjohn Co., 110 F.R.D. 15 (E.D. Pa. 1986). As the result of Tanner’s waiver, there is no error to be reviewed regarding the trial court’s conduct in not enforcing its discovery order that the State produce Tanner’s blood sample for testing by Tanner’s expert.
Thus, I agree with the majority’s conclusion that the evidence supports Tanner’s conviction, but disagree with the majority’s explanation that Tanner’s assignment of error concerning production of the blood sample is without merit. However, as the result of Tanner’s waiver of the discovery order, the district court’s judgment, affirming Tanner’s conviction, should be affirmed.
Caporale and Grant, J J., join in this concurrence.