The opinion
BUSSEY, Presiding Judge
(specially concurring) :
I concur in the conclusion of my learned colleague, Judge Nix, that the case should be reversed and remanded for a new trial.
It is my opinion that in order to render motion pictures of the “Alcoholic Influence Test” admissible, it need only be shown that the tests were performed voluntarily by the accused. If they were performed voluntarily and the officer could describe the conduct of the accused in performing the tests, the motion pictures of the same would be admissible irrespective of whether or not the accused knew that they were being taken. And, conversely, if the tests were performed while the accused acted under compulsion and duress, neither the testimony of the officer nor the motion pictures of the tests would be admissible.
In considering the second assignment of error, while I believe it to be the better practice for officers of the law to allow the person under arrest the privilege of calling his physician in order to secure a medical examination which might 'tend to establish his sobriety, I must respectfully disagree with that portion of the' opinion that suggests that a, refusal to grant such request amounts to a denial of a constitutional right.