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State6/30/2000
e must prove by a preponderance of the evidence:
hat the subsequent consent occurred within a reasonable time after the prior first refusal; that the test administered following the subsequent consent will still be accurate; that the test will not result in any substantial expense or inconvenience to the police; and that the arrestee has been in continuous custody of the arresting officer and under observation for the entire time.[ ]
About thirty minutes passed between Shakespeare's explicit refusal to be tested and her subsequent consent. But because she consented at the hospital, the officers had to take Shakespeare to the Juneau Police Department to administer the breath test. Pruitt concerned an arrestee who sprayed breath spray down his throat before he consented to take a breath test, requiring an additional twenty-minute observation period before he could be tested. We stated that "such delay would pose a substantial burden on the officer who then had custody of Pruitt since the officer would have been prevented from fulfilling other duties."
Similarly, it appears that Shakespeare's vacillation substantially burdened these police officers. But the circumstances here render the officers' pre-testing burden irrelevant. At least when officers actually administer a breath test and obtain potentially probative evidence after a driver withdraws a prior refusal, it would be unfair and inconsistent to treat the earlier refusal as justification for administratively revoking the driver's license.
We therefore hold that when a DWI arrestee initially refuses a breath test, and then changes his or her mind and offers to take the test, the police must decide whether to permit him or her to give a breath sample. If the police administer the test and obtain potentially probative results, the arrestee's license may not be administratively revoked for the prior refusal to be tested. If the police do not administer a test, the department may revoke the license unless the arrestee meets the burden of proving, under Pruitt, that he or she cured the refusal. Here the officers permitted the driver to give a breath sample. Her prior refusal, therefore, cannot be the basis for administratively revoking her license.
IV. CONCLUSION
Because Shakespeare, with the officers' permission, actually gave a breath sample providing potentially probative evidence, her license may not be administratively revoked despite her earlier refusal to be tested. We therefore AFFIRM the superior court's decision remanding the case to the Department of Public Safety for reinstatement of Shakespeare's license.
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