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Costin v. State9/16/2004
In this case, there is no evidence of Costin's blood-alcohol concentration. Although Costin's refusal to submit to chemical testing may create an inference that the test would show the presence of alcohol, it does not establish that his blood-alcohol content was greater than 0.08. [FN8]
Under these circumstances, the trial court failed to properly exercise its discretion in sentencing Costin. Accordingly, we hereby vacate Costin's sentence and remand to the trial court for resentencing with direction that the trial court consider suspending, staying, or probating Costin's remaining jail time.
Judgment of conviction affirmed
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