On April 24, 1982 Donald Louis Wessels was arrested and charged with various vehicular offenses, among them driving under the influence of alcohol. At the time of his arrest, defendant refused to submit to a chemical test used to determine the alcohol content of his blood. At trial it was stipulated that defendant refused such test after he had been duly informed of his rights under the Implied Consent Statute, OCGA § 40-5-55 (Code Ann. § 68B-306). In his opening argument, the solicitor told the jury that defendant had refused the arresting officer’s request for submission to the chemical test. Counsel for defendant objected to the solicitor’s remark and moved for mistrial. The trial court overruled this motion and defendant was convicted of D.U.I. and sentenced to 12 months imprisonment. Following the denial of his motion for new trial, defendant brings the present appeal.
1. Defendant enumerates as error the denial of his motion for mistrial arguing in support thereof that the admission of his refusal to submit to the chemical test violated his constitutional right against self-incrimination as guaranteed by Art. I, Sec. I, Par. XIII of the Constitution of Georgia of 1976 (Code Ann. § 2-113) (now Art. I, Sec. I, Par. XVI, Ga. Const. 1983 (Code Ann. § 2-116)). We note initially that the United States Supreme Court has recently addressed the identical issue on the federal level as raised under the Fifth Amendment right against self-incrimination. In South Dakota v. Neville,-U. S.- (103 SC 916, 74 LE2d 748, 759) (1983), the court held “that a refusal to take a blood-alcohol test, after a police officer has lawfully requested it, is not an act coerced by the officer, and thus is not protected by the privilege against self-incrimination.
Applied to the facts of the present appeal, the holding in South Dakota v. Neville is, of course, dispositive of the question. Although defendant correctly argues that the Georgia Constitution affords more protection from self-incrimination than does the United States Constitution, the initial inquiry must be whether he had been compelled or forced to produce the evidence at issue. Our state law differentiates between compelling a criminal defendant to perform an act resulting in production of incriminating evidence and compelling him to submit to a procedure designed to extract such evidence. The former produces inadmissible evidence; the latter is admissible. See
Creamer v. State,
2. Defendant next contends that evidence of his refusal to submit to the blood-alcohol test is inadmissible because it is irrelevant to the question of guilt or innocence under
Johnson v. State,
Additionally, we believe our holding, that a refusal to submit to a blood-alcohol test is admissible, to be supported by the legislative history of the applicable statute. The Uniform Traffic Act was adopted by the General Assembly in 1953 (Ga. L. 1953, Nov. Sess., p. 556), with Section 47 governing persons driving under the influence of intoxicating liquor or drugs. Pertaining to the criminal prosecution for the offense of D.U.I., Section 47 (b) provided for certain
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rebuttable presumptions to arise from results of the defendant’s blood-alcohol test with the following proviso: “[T]he failure of such arrested person to ... consent to such a test shall not be admitted in evidence in the trial of such person—” The Act was amended in 1968 by striking Section 47 in its entirety and substituting a new Section 47. See Ga. L. 1968, p. 448, Section 1. No provision for, nor reference to, the inadmissibility of a refusal to submit to a blood-alcohol test was included in the 1968 re-enactment of Section 47 or in the new Section 47A which was added within the same legislation. Since it must be presumed that the General Assembly was familiar with Section 47 of the 1953 Act when, in the 1968 Act, it struck Section 47 completely and re-enacted a new Section 47 and Section 47A, it necessarily follows that the omission of the provision for the inadmissibility of the refusal shows the legislative intent to remove the statutory bar to the introduction of this evidence at trial. See
Webb v. Alexander,
*248 For the reasons presented above, the trial court did not err in admitting evidence of appellant’s refusal to submit to the blood-alcohol test.
Judgment affirmed.
Notes
While the September 1, 1983 effective date of the statute precludes its application to the present appeal, it is helpful in defining the legislative intent.