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STATE v. BUTLER11/15/1995
ion 1312 states that "a breath test will be administered, unless, in the determination of the law enforcement officer, it is unreasonable for a breath test to be administered . . . ." In other words, the Legislature did intend exactly what the court said it did not; namely, that police departments may determine that breath tests will be the rule,
and blood tests will be given only when a breath test is "unreasonable."
The District Court's concern with regard to the probative value of a refusal to take only one kind of test, as opposed to a refusal to be tested at all, is an issue that may be addressed by Butler at trial. Excluding from evidence the fact of a refusal to take a chemical test is a statutory remedy that should be afforded only when the law enforcement officer "fails to give either of the warnings required under subsection 1." 29 M.R.S.A. § 1312(8), Butler's failure to take a breath test in this instance does amount to a refusal to submit to chemical testing, within the meaning of the statute. The fact that Butler testified he would take a blood test because he did not trust the breath test shows that he specifically did refuse to take a breath test. Butler's willingness to submit to a blood test is irrelevant because the Legislature has said that, unless the officer deems it unreasonable, a breath test will be given. Therefore, Butler's conscious refusal to take a breath test amounts to " he failure of a person to comply with the duty required by this section to submit to a chemical test [which] shall be admissible in evidence on the issue of whether that person was under the influence of intoxicating liquor or drugs." 29 M.R.S.A. § 1312(8).
The entry is:
Suppression order vacated. Remanded for further proceedings consistent with the opinion herein.
All concurring.
Page 1 2 Maine DUI Attorneys
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