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State v. Wilson3/16/1983
ed that way in recruit school, I was instructed before at the desk by the desk people.
It is clear that the appellant never expressly, either orally or in writing, refused to take a blood test. The choice of taking a breathalyzer test cannot be deemed to be a refusal to take a blood test unless the driver, orally or in writing, expressly so indicates. When the breathalyzer failed to register, it was therefore incumbent upon the police to offer the appellant an opportunity to take a blood test. Since they did not do so, and since there is no evidence of a refusal to take a blood test, the State has failed to prove a necessary element of its case, to wit, that the person had refused to take a test of his breath or blood.
Reversed.
Disposition
Reversed.
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