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State v. Juarez4/6/1989
choeffler
Mark Neal Schoeffler was incorrectly informed that he would not be allowed to call his attorney before taking the breath test, allegedly because a call would have disrupted the ongoing investigation. We disagree. The officer's statements that it would have been disruptive to allow defendant to make a phone call during the twenty-minute observation period is inconsistent with his statement that it would not have been disruptive for the defendant to answer the officer's questions during that same period.
We do not believe there was sufficient evidence to show that the phone call would have disrupted an ongoing investigation during the twenty-minute observation period. The state did not carry its burden in that regard. Evidence of defendant's refusal should not have been admitted and the trial court incorrectly denied the motion to dismiss or to suppress.
As to Mark Neal Schoeffler, the matter is reversed and remanded for a new trial.
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