¶1(dissenting).
¶2*210I am dissenting from the majority opinion for reasons herein set forth. I do not, however, dissent from the majority opinion so far as the holding on the arrest issue. I agree there was a valid arrest and that to me is the key point on the issue of the use of the breathalyzer test on the charge of driving while intoxicated.
¶3I do not accept as true the statement in the majority opinion that defendant was not requested to submit to the breathalyzer test, because the officer did tell defendant that he (defendant) had had too much to drink to be driving and advised defendant that he and the officer would go to Deadwood for a breathalyzer test. The officer did not “advise him that he had the right to refuse to submit to such test, nor of the consequences of such refusal.” This is somewhat similar to State v. Batterman, 79 S.D. 191, 195, 110 N.W.2d 139, 141, where this Court said “[t]he defendant was informed that he had a right to refuse to submit.” In our case he was not so advised. The Court further said, “Hence, whether the legislature intended an express consent to be invalid, if received in the absence of an explanation of the penalty attached to a refusal to submit, is the narrow question before us.” In our case the defendant was not advised of the penalty. Our case is therefore somewhat like Batterman, supra, and somewhat different. We have a valid arrest and a lack of explanation by the officer. In Batterman no question appears relative to the arrest procedure, and a partial explanation given by the arresting officer. In both cases the charge is DWI. The conviction in Batterman was affirmed.
¶4The majority opinion states that three years later, without citing Batterman, this Court stated:
“Since our statute requires it, an arresting officer is obligated to inform a driver of the consequences in the event of his refusal to submit to a test.” Chmelka v. Smith, 81 S.D. 40, 44, 130 N.W.2d 423, 425.
¶5I believe in Chmelka v. Smith. I have no quarrel with it. In Chmelka the proceeding was upon a petition for determination whether driver’s permit was subject to suspension or revocation for violation of Implied Consent Law. It is plain that the Court *211said it was, but also found that the explanation had been made and dismissed the petition. There was no need to cite Batterman. Unlike Batterman, this was not a criminal action, and in Chmelka the Court going no further than upholding the consequence the statutes provided where the officer might not make them known to the suspected drunk driver. For all we know Chmelka may or may not have been tried on the DWI. It is possible, though speculative, he may have been tried and found not guilty of DWI, or just the reverse.
¶6Chmelka is also authority for the following views as to the rights and privileges of driving.
“The operation of a motor vehicle upon the public highways is not a natural or unrestricted right. It has been variously denominated as a privilege, a privilege in the nature of a right, an important right under our present mode of living, and as a vested right. Prucha v. Department of Motor Vehicles, 172 Neb. 415, 110 N.W.2d 75, 88 A.L.R.2d 1055; In re Wright, 228 N.C. 584, 46 S.E.2d 696; Thompson v. Thompson, N.D., 78 N.W.2d 395; Application of Goodwin, 173 Misc. 169,17 N.Y. S.2d 426. In any event, a permit or license to operate a motor vehicle, once issued, is of substantial value to its holder and more especially to persons who depend for their livelihood upon the operation of a motor vehicle. Even if the driving of a motor vehicle upon the public highways be termed a mere privilege, a driver’s permit or license may be suspended or revoked only in the manner and on grounds provided by law. 60 C.J.S. Motor Vehicles § 160; annotation, 88 A.L.R.2d 1064.” Chmelka v. Smith, supra, 130 N.W.2d at p. 424.
¶7Beare v. Smith, 82 S.D. 20, 140 N.W.2d 603, is consistent with Batterman, supra, and with Chmelka, supra. At least it does not uphold the doctrine we are invited to by the majority opinion in Buckingham. The action in Beare v. Smith is a proceeding to review revocation of driver’s license and that is all. It plainly holds that such an action is “separate and distinct” from a criminal trial. It even cites Batterman to the effect that results of *212a blood test were held admissible in the criminal prosecution although the officer “did not explain the penalty attached to a refusal to submit.”
“The right to operate a motor vehicle upon a public street or highway is not a natural or unrestricted right but a privilege which is subject to reasonable regulation under the police power of the state in the interest of public safety and welfare. Chmelka v. Smith, 81 S.D. 40, 130 N.W.2d 423. The proceeding to determine or review the propriety of the cancellation, suspension, or revocation of a driver’s license is separate and distinct from a criminal trial on a charge of driving while under the influence of intoxicating liquor or drugs, and the efficacy of the revocation by the Commissioner does not hinge on whether there is a conviction or acquittal on a criminal charge related to the test. Prucha v. Department of Motor Vehicles, 172 Neb. 415, 110 N.W.2d 75, 88 A.L.R.2d 1055. In Chmelka in a proceeding by the Commissioner we said: ‘Since our statute requires it, an arresting officer is obligated to inform a driver of the consequences in the event of his refusal to submit to a test.’ Contrariwise, in State v. Batterman, 79 S.D. 191, 110 N.W.2d 139, the results of a blood test were held admissible in a criminal prosecution, although the officer did not explain the penalty attached to a refusal to submit.” Beare v. Smith, supra, 140 N.W.2d, at 606.
¶8In State v. Spry, 87 S.D. 318, 207 N.W.2d 504, we said that SDCL 32-23-10
“provides in substance that when a police officer has reasonable grounds to believe that a person has been driving under the influence of alcohol and has been charged with a traffic violation, the officer can request that such person submit to a chemical analysis of his blood. It also provides that consent to submit to the test is implied from the fact of his driving.”
¶9In a footnote we cite
*213“A three judge federal court recently held in Holland v. Parker, D.C., 1973, 354 F.Supp. 196, that the South Dakota implied consent statute is unconstitutional to the extent that it permits a police officer to demand that a subject submit to a blood test without first making a lawful arrest.” (emphasis supplied)
¶10Spry was a criminal prosecution and we said “The issue before the federal court in Holland was the right to revoke Holland’s license under the circumstances. This is not the issue in our case.” Then most importantly we held,
“Aside from all that, however, we hold that a defendant’s consent or refusal is irrelevant to the admission of the results of the blood test if the test is taken pursuant to a valid arrest. Cf. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908. Holland v. Parker, supra.”
¶11The Holland v. Parker, supra, case was an attempt to revoke a license to drive for failing to submit to the blood test. Parenthetically we have since amended our statutes to take care of the objections made in Holland. The three judge Federal Court stated in their opinion:
“Thus it would seem that if a police officer, implementing search and seizure procedures in accordance with constitutional proscriptions, cannot require a person to take a blood test without a warrant unless there is a lawful arrest and emergency circumstances, then neither could the officer demand that a licensee submit to the blood test, without these same constitutional prerequisites, when refusal would result in automatic loss of his license. If it were any other way, the Fourth Amendment protections would be rendered valueless since asserting them would result in a penalty potentially more severe than conviction for the alleged public offense.” (emphasis supplied)
¶12It also quoted from Schmerber,
*214“In Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826,16 L.Ed.2d 908 (1966), the Fourth Amendment was found applicable to blood tests. There, within the context of a warrantless search the Supreme Court indicated that if a blood test is to be taken incident to a legal arrest, there must be probable cause, the arrest must be lawful, and there must be an emergency:
The interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions (beyond the body’s surface) on the mere chance that desired evidence might be obtained. … Search warrants are ordinarily required for searches of dwellings, and, absent an emergency, no less could be required where intrusions into the human body are concerned.
¶13Id. at 769-770, 86 S.Ct. at 1835, 16 L.Ed.2d at 917.
The language of the South Dakota statute provides for neither an emergency circumstance nor a lawful arrest, nor has it been interpreted to contain such.”
¶14Among other things the Court in Holland concluded that the
“Fourth Amendment requires a lawful arrest of a motorist prior to request for submission to a blood-alcohol chemical analysis; police officer cannot demand that a licensed driver submit to a blood test, without constitutional prerequisite of either lawful arrest or emergency circumstance, when motorist’s refusal would result in automatic loss of his license.” (see syllabus 2)
¶15The question in Schmerber v. State of California, 1966; 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908; was concerned with the admissibility of a blood sample analysis where such blood had been withdrawn despite defendant’s refusal, on the advice of his counsel, to consent to the test. Defendant had been arrested at a hospital while receiving treatment for injuries suffered in an accident involving the automobile that he had apparently been driv*215ing. At the direction of a police officer a blood sample was then withdrawn from defendant’s body by a physician at the hospital. It would make this already too long dissent, even longer to analyze Schmerber, and it had vigorous dissents. However, the Court allowed the analysis of the blood sample, even under such circumstances, admitted in evidence. It simply held that defendant’s rights under the Constitution had not been violated. For instance, it held that his claim of privilege under the Fifth Amendment was not violated. It held that the privilege protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature, and that the withdrawal of blood and use of the analysis in question did not involve compulsion to these ends.
¶16Quoting further from Schmerber:
“ ‘[T]he prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material. The objection in principle would forbid a jury to look at a prisoner and compare his features with a photograph in proof.’ [Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021] 218 U.S., at 252-253, 31 S.Ct., at 6, 54 L.Ed., at 1025.
It is clear that the protection of the privilege reaches an accused’s communications, whatever form they might take, and the compulsion of responses which are also communications, for example, compliance with a subpoena to produce one’s papers. Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746. On the other hand, both federal and state courts have usually held that it offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture. The distinction which has emerged, often expressed in different ways, is that the *216privilege is a bar against compelling ‘communications’ or ‘testimony,’ but that compulsion which makes a suspect or accused the source of ‘real or physical evidence’ does not violate it.”
¶17SDCL 32-23-11 provides:
“If any person described in § 32-23-10, after request and explanation as therein provided, shall refuse to submit to such chemical analysis, then such test shall not be given. In such event, the department of public safety shall revoke for one year his license to drive and any nonresident operating privilege …
¶18There is no language in this section which would make the chemical analysis in our case not permissible evidence in the criminal action. The officer told him he was going to take him to Deadwood for a breathalyzer test. What the officer failed to tell him, and what defendant contends, is he wasn’t advised of his right to refuse the breathalyzer test, and the consequences of such refusal. The consequences as I see it are contained in SDCL 32-23-10 and 32-23-11 and that has to do with the revocation of the person’s driving license, and not to any privilege to drive while he is drunk on the public highways of the State.
¶19I believe that by the operation of a vehicle the defendant should be deemed to have given his consent subject, of course, to his right to refuse and have his right or privilege to drive taken from him. This must be especially so where we violate no constitutional right of his.
¶20In summary I would hold that the breathalyzer results are admissible evidence in the DWI trial. The arrest was lawful and the implied consent law is sufficient to justify the test, with or without defendant’s consent. This is consistent with Schmerber at the federal level and with Spry in our state. It is also consistent with Holland.
¶21I would not create a new exclusionary rule of law under the facts of this case.
¶22*217It is not true that the last paragraph of SDCL 32-23-10 places a restriction on the authority of law enforcement officers to give a breathalyzer test on those lawfully arrested for a violation of SDCL 32-23-1, nor is there any constitutional provision to the contrary. It can only be said, on the contrary, that the last paragraph of SDCL 32-23-10 only places a restriction upon the authorities whereby they cannot use Defendant’s refusal, or his lack of being informed of his right of refusal and the results of such refusal if he makes one, to take a test as evidence sufficient to trigger the one year license suspension.