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Sherrill v. Department of Transportation10/9/1990
96. The court reversed the finding of refusal for insufficient evidence, and did not address the relationship between a deficient
sample and successful completion of a test.
The "validity" issue discussed in Robinson was limited to an inquiry about whether the test met the foundational requirements for admissibility. In a broader sense, however, a "valid" test may include a test that is competent and admissible to obtain a DUI conviction, absent evidence of its inaccuracy or invalidity. If the state used a deficient sample as competent evidence to obtain a DUI conviction, then the sample is not sufficient evidence, by itself, to prove a refusal to successfully complete a breath test.
Like the Robinson court, however, we do not mean to imply that evidence of willful noncooperation independent of the deficient sample is necessary in every case to support a finding of refusal to take a blood alcohol test. For example, in a case where the prosecution has been unable or unwilling to use that same sample as competent evidence in a criminal prosecution because it is shown to be unreliable or inaccurate, the driver's failure to supply the state with a valid test result might support such a finding. We merely hold that on the basis of this record, absent evidence of petitioner's noncooperation, absent evidence of the inadequacy or inaccuracy of the deficient sample, and in the face of evidence that petitioner supplied a usable sample above the presumed intoxication level that was instrumental in obtaining a DUI conviction, the state failed to meet its burden to show a refusal to successfully complete the test.
Conclusion
We reverse the hearing officer's finding of refusal and vacate the order suspending petitioner's license. The court of appeals opinion is vacated.
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