BECKERT, J.,
We have before us for disposition, defendant’s motion to suppress the evidence resulting from a breathalyzer test administered him pursuant to the Act of December 22, 1969, P. L. 392, sec. 1, 75 PS §624.1, he having been indicted for operating a motor vehicle while under the [59]*59influence of intoxicating liquor in violation of the Act of April 29, 1959, P. L. 58, sec. 1037, 75 PS §1037. Defendant contends that this evidence should be suppressed and held inadmissible at trial, because of the failure of the police officer to advise him of his right to have a physician of his own choosing then and there administer a breath or blood chemical test, in addition to the breathalyzer test which they performed. In order that the court, rather than a single judge, decide this question in this county, the matter was placed on the argument list and argued before the court en banc.
The act authorizing the use of a breathalyzer provides that any person who operates a motor vehicle or tractor, in this Commonwealth, shall be deemed to have given his consent to a chemical test of his breath for the purpose of determining alcoholic content of his blood. Subsection (g) of the aforesaid act provides that the person tested shall be permitted to have a physician of his own choosing then and there administer a breath or blood chemical test in addition, and the results of such test shall also be admissible in evidence. The act further provides that if any person is placed under arrest and charged with the operation of a motor vehicle or tractor while under the influence of intoxicating liquor and is thereafter requested to submit to a chemical test and refuses to do so, the test shall not be given, but the secretary may suspend his license or permit to operate a motor vehicle or tractor with or without a hearing. The act further provides in subsection (h) that the refusal to submit to a chemical test may be admitted into evidence as a factor to be considered in determining innocence or guilt.
This question has been the subject matter of other decisions at the nisi prius level. The question has not [60]*60been resolved by the appellate courts in this Commonwealth. The Commonwealth Court in Commonwealth v. Gallagher, 3 Com. Ct. 371 (1971), held that the failure to advise of this right was not an impediment to a suspension of operator’s privileges, where appellant had refused to take the breathalyzer test and thereupon had his operator’s privileges suspended under and pursuant to this act. This decision, however, does not answer the question before us, because the Gallagher court was dealing with a license suspension casé, rather than a criminal case wherein the burden of proof is different. Furthermore, Gallagher was based to some extent upon the proposition that the right to operate a motor vehicle is a privilege, rather than a constitutionally protected property right. This doctrine is rather difficult, at the present time, to preach in view of the language in Bell v. Burson, 402 U.S. 535 (1971).
Without any hesitancy on our part, we can find that the taking of defendant’s breath for the purpose of the breathalyzer test does not constitute a violation of defendant’s protection against self-incrimination as spelled out in the Fifth Amendment of the United States Constitution. The taking of blood from a defendant for the purpose of a determination of the blood alcohol content is not such protective activity. See Schmerber v. California, 384 U.S. 757, 16 L. Ed. 2d 908, 86 S. Ct. 1826 (1966); Commonwealth v. Tanchyn, 200 Pa. Superior Ct. 148 (1963); Commonwealth v. Statti, 166 Pa. Superior Ct. 577 (1950), and Commonwealth v. Bozzo, 13 Bucks 181 (1963). Therefore, it would follow that the taking of his breath would not constitute such testimonial evidence as to fall within the protections of the Fifth Amendment, any more than the taking of his clothes for chemical testing or his fingerprints would: Commonwealth v. [61]*61Aljoe, 420 Pa. 198 (1966) and Commonwealth v. Statti, supra.
With equal force, we can document our statement that the taking of defendant’s breath constitutes a search and seizure: Schmerber v. California, supra; and Commonwealth v. Irvin, 41 D. & C. 2d 301 (1966) on (taking of blood held to be search and seizure); Commonwealth v. Jefferson, 445 Pa. 1 (1971), (taking of fingerprints for evidential purposes); Commonwealth v. Aljoe, supra, (taking clothes for chemical analysis and evidentiary purposes); and State v. Swiderski, 94 N.J. Super. Ct. 14, 226 A.2d 728 (1967), which specifically held that a breathalyzer test to determine a subject’s intoxication constituted a search of his person.
Be that as it may, we cannot agree with the holding of Commonwealth v. Dierkes, 51 D. & C. 2d 389 (1970), that the duty of the arresting officer to advise defendant that he has a right to have a physician of his own choosing then and there administer a breath or blood test, in addition to the Commonwealth’s breathalyzer test, rises to the height of a constitutional right. The statement that this right is not one of constitutional stature should not be construed or interpreted as our holding that a defendant so situate as this defendant does not have the constitutional right to be examined by a doctor of his own choosing following his arrest. The refusal of a request by defendant for such an examination, whether it be of his breath, blood or any other type of examination, would most certainly be a denial of due process. See 78 A.L.R. 2d 905. We fail to see, however, how the failure to advise a defendant of that right could rise to constitutional dimensions.
To our way of thinking, a constitutional right means a right guaranteed to a citizen by the Constitution and is so guaranteed as to prevent legislative interfer[62]*62ence. The Constitution does not place a burden upon an arresting officer to advise a defendant of all of the possible defenses that he might have, or all of the possible trial stratagems that are open to him. Defenant, in the exercise of his own common sense, has the right to seek such aid as he believes to be helpful to him. The constitutional guarantee flowing to a defendant is that no officer of the law can constitutionally prevent or refuse defendant of the right and opportunity to avail himself of certain protections and defenses. The Constitution does not guarantee that police officers, or others in authority, must suggest to a defendant every possible avenue that may be of any benefit to him in the course of defending himself against the crime for which he has been charged. To state the above in slightly different language, there is an affirmative duty upon an officer of the law to advise those charged with crimes of rights guaranteed in the Constitution, such as the right to counsel, the right against self-incrimination and other fundamental rights specifically spelled out therein, but, beyond those specifically designated rights, there does not exist an affirmative duty to advise one charged with a crime as to purely statutory rights, unless the statute expressly requires it: People v. Kerrigan, 154 N.W. 2d 43, 45 (8 Mich. App. 216) (1967)).
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BECKERT, J.,
We have before us for disposition, defendant’s motion to suppress the evidence resulting from a breathalyzer test administered him pursuant to the Act of December 22, 1969, P. L. 392, sec. 1, 75 PS §624.1, he having been indicted for operating a motor vehicle while under the [59]*59influence of intoxicating liquor in violation of the Act of April 29, 1959, P. L. 58, sec. 1037, 75 PS §1037. Defendant contends that this evidence should be suppressed and held inadmissible at trial, because of the failure of the police officer to advise him of his right to have a physician of his own choosing then and there administer a breath or blood chemical test, in addition to the breathalyzer test which they performed. In order that the court, rather than a single judge, decide this question in this county, the matter was placed on the argument list and argued before the court en banc.
The act authorizing the use of a breathalyzer provides that any person who operates a motor vehicle or tractor, in this Commonwealth, shall be deemed to have given his consent to a chemical test of his breath for the purpose of determining alcoholic content of his blood. Subsection (g) of the aforesaid act provides that the person tested shall be permitted to have a physician of his own choosing then and there administer a breath or blood chemical test in addition, and the results of such test shall also be admissible in evidence. The act further provides that if any person is placed under arrest and charged with the operation of a motor vehicle or tractor while under the influence of intoxicating liquor and is thereafter requested to submit to a chemical test and refuses to do so, the test shall not be given, but the secretary may suspend his license or permit to operate a motor vehicle or tractor with or without a hearing. The act further provides in subsection (h) that the refusal to submit to a chemical test may be admitted into evidence as a factor to be considered in determining innocence or guilt.
This question has been the subject matter of other decisions at the nisi prius level. The question has not [60]*60been resolved by the appellate courts in this Commonwealth. The Commonwealth Court in Commonwealth v. Gallagher, 3 Com. Ct. 371 (1971), held that the failure to advise of this right was not an impediment to a suspension of operator’s privileges, where appellant had refused to take the breathalyzer test and thereupon had his operator’s privileges suspended under and pursuant to this act. This decision, however, does not answer the question before us, because the Gallagher court was dealing with a license suspension casé, rather than a criminal case wherein the burden of proof is different. Furthermore, Gallagher was based to some extent upon the proposition that the right to operate a motor vehicle is a privilege, rather than a constitutionally protected property right. This doctrine is rather difficult, at the present time, to preach in view of the language in Bell v. Burson, 402 U.S. 535 (1971).
Without any hesitancy on our part, we can find that the taking of defendant’s breath for the purpose of the breathalyzer test does not constitute a violation of defendant’s protection against self-incrimination as spelled out in the Fifth Amendment of the United States Constitution. The taking of blood from a defendant for the purpose of a determination of the blood alcohol content is not such protective activity. See Schmerber v. California, 384 U.S. 757, 16 L. Ed. 2d 908, 86 S. Ct. 1826 (1966); Commonwealth v. Tanchyn, 200 Pa. Superior Ct. 148 (1963); Commonwealth v. Statti, 166 Pa. Superior Ct. 577 (1950), and Commonwealth v. Bozzo, 13 Bucks 181 (1963). Therefore, it would follow that the taking of his breath would not constitute such testimonial evidence as to fall within the protections of the Fifth Amendment, any more than the taking of his clothes for chemical testing or his fingerprints would: Commonwealth v. [61]*61Aljoe, 420 Pa. 198 (1966) and Commonwealth v. Statti, supra.
With equal force, we can document our statement that the taking of defendant’s breath constitutes a search and seizure: Schmerber v. California, supra; and Commonwealth v. Irvin, 41 D. & C. 2d 301 (1966) on (taking of blood held to be search and seizure); Commonwealth v. Jefferson, 445 Pa. 1 (1971), (taking of fingerprints for evidential purposes); Commonwealth v. Aljoe, supra, (taking clothes for chemical analysis and evidentiary purposes); and State v. Swiderski, 94 N.J. Super. Ct. 14, 226 A.2d 728 (1967), which specifically held that a breathalyzer test to determine a subject’s intoxication constituted a search of his person.
Be that as it may, we cannot agree with the holding of Commonwealth v. Dierkes, 51 D. & C. 2d 389 (1970), that the duty of the arresting officer to advise defendant that he has a right to have a physician of his own choosing then and there administer a breath or blood test, in addition to the Commonwealth’s breathalyzer test, rises to the height of a constitutional right. The statement that this right is not one of constitutional stature should not be construed or interpreted as our holding that a defendant so situate as this defendant does not have the constitutional right to be examined by a doctor of his own choosing following his arrest. The refusal of a request by defendant for such an examination, whether it be of his breath, blood or any other type of examination, would most certainly be a denial of due process. See 78 A.L.R. 2d 905. We fail to see, however, how the failure to advise a defendant of that right could rise to constitutional dimensions.
To our way of thinking, a constitutional right means a right guaranteed to a citizen by the Constitution and is so guaranteed as to prevent legislative interfer[62]*62ence. The Constitution does not place a burden upon an arresting officer to advise a defendant of all of the possible defenses that he might have, or all of the possible trial stratagems that are open to him. Defenant, in the exercise of his own common sense, has the right to seek such aid as he believes to be helpful to him. The constitutional guarantee flowing to a defendant is that no officer of the law can constitutionally prevent or refuse defendant of the right and opportunity to avail himself of certain protections and defenses. The Constitution does not guarantee that police officers, or others in authority, must suggest to a defendant every possible avenue that may be of any benefit to him in the course of defending himself against the crime for which he has been charged. To state the above in slightly different language, there is an affirmative duty upon an officer of the law to advise those charged with crimes of rights guaranteed in the Constitution, such as the right to counsel, the right against self-incrimination and other fundamental rights specifically spelled out therein, but, beyond those specifically designated rights, there does not exist an affirmative duty to advise one charged with a crime as to purely statutory rights, unless the statute expressly requires it: People v. Kerrigan, 154 N.W. 2d 43, 45 (8 Mich. App. 216) (1967)).
The wording in the instant statute providing that “the person tested shall be permitted to have a physician of his own choosing then and there administer a breath or blood chemical test in addition, and the results of such tests shall also be admissible in evidence” does not set forth a new constitutional guarantee, but merely is a spelling out in a statute of statutory rights which cannot be denied a defendant when requested, and if requested and performed by defen[63]*63dant’s physician, then the legislature states “and the results of such tests shall also be admissible in evidence.” We note that nowhere in the statute is it dictated by the legislature that defendant need be advised of the right to the additional test by his own physician: Commonwealth v. Miller, 52 D. & C. 2d 630 (1971); Commonwealth v. Ode, 53 D. & C. 2d 563 (1971); People v. Kerrigan, supra.
Having reached the conclusion that defendant possesses only a statutory right, the problem of whether or not he consented to the taking of this test upon which defendant places such great weight is rendered moot.
Assuming, however, that we are in error in not considering this right to be one of constitutional dimension, we would, nevertheless, find that under the facts of our instant case defendant’s motion to suppress should still be denied.
This case is before the court on “stipulation of counsel” and paragraph 1 thereof sets forth “That the defendant was arrested by a Middletown Township Police Officer on March 16, 1970 and charged with operating a motor vehicle while under the infuence of intoxicating liquor; . . .”
As defendant was arrested for this offense, it would most certainly appear that the ancient exception to the search and seizure prohibition would come into play, namely, the right to search the person of an individual incident to a lawful arrest. We are all familiar with the underlying rationale for this exception, that being “if the defendant be caught with the goods,” he should then and there be searched rather than be permitted to dispose of evidence to the crime. Applying this principle to the instant case, we know as a matter of common knowledge that the intoxicating effect and the amount of alcohol within one’s [64]*64person diminishes with the passing of time. In a matter of a few hours a person who was under the influence of intoxicating liquor may “sober up” to the extent of obtaining a favorable breathalyzer reading. Also, to be of real probative value, the test must be near to the offense in point of time. Therefore, a defendant arrested for this type of crime may “be caught with the goods,” but by requiring the arresting officer to obtain a search warrant to seize the evidence, the same may be disposed of by the mere passing of time. It is for this reason that we hold that as the arrest was lawful and, therefore, made upon probable cause, (this fact is not disputed by counsel for the defense), there may be a search, (breathalyzer examination), of the person arrested and neither a body nor search warrant is necessary: Commonwealth v. Vassiljev, 218 Pa. Superior Ct. 215 (1971).
August 3, 1972.
Therefore, in accordance with the above, we enter the following
ORDER
And now, August 3, 1972, defendant’s motion to suppress is hereby denied and refused.