We are mindful that other courts have held differently. See, e.g., Baker v. State, 42 Colo. App. 133, 593 P.2d 1384 (1979). In Baker, the driver submitted to a breath test, but held a coin in his mouth and placed his tongue over the entrance to the balloon.
As a result, Clark is distinguishable in that it fails to address the same facts and circumstances that are before this court in the instant case. The department also cites Call v. Kansas Dept. of Revenue, 17 Kan. App. 2d 79, 831 P.2d 970 (1992), and Baker v. Colorado, 42 Colo. App. 133, 593 P.2d 1384 (1979), in support of their position. However, as with State v. Clark, supra, these cases are distinguishable.
Courts of other jurisdictions have found that failure to provide a breath sample sufficient to complete the test being administered constitutes a refusal. In Baker v. Colorado, 42 Colo.App. 133, 593 P.2d 1384 (1979), the plaintiff, Baker, failed to cooperate in blowing up a balloon which was part of the testing device. After seven requests by the officer to keep trying, Baker filled the balloon about one-half full.
In this case as well as others, the court of appeals applied the test from Dolan and reviewed the objective statements and behavior of the driver to determine whether there was an ultimate refusal to submit to testing as a matter of law.See, e.g., Poe v. Dep't. of Revenue, Motor Vehicle Div., 859 P.2d 906 (Colo.App. 1993) (holding that it was reasonable for arresting officer to take the driver's silence to be a refusal to submit to testing based on an objective determination that such silence was a manifestation of non-cooperation and unwillingness to take the test); Baker v. State, 42 Colo.App. 133, 593 P.2d 1384 (1979) (finding that driver's failure to blow up the breathalyzer balloon more than half way after seven requests by officer constituted refusal to submit to testing). In the second set of cases, the court of appeals dealt with the factual scenario where the driver initially refused, but subsequently agreed to submit to testing.
There are cases under implied consent laws, in which the licensee produced an insufficient sample for a breath alcohol test, where the courts have sustained the license suspension because the licensing authorities produced some evidence, in addition to the incomplete test, that the licensee was intentionally uncooperative. See Baker v. State, 42 Colo. App. 133, 593 P.2d 1384, 1385 (1979) (licensee "had a coin in his mouth which he was biting, while placing his tongue over the entrance to the balloon. . . ."); Jordan v. State, 132 N.H. 34, 561 A.2d 1078, 1079 (1989) (licensee belched into machine after having previously done so and after having been warned not to do so again); Tolbert v. Hiatt, 95 N.C. App. 380, 382 S.E.2d 453, 454 (1989) (licensee placed a piece of paper or foreign matter in his mouth); Geiger v. Hjelle, 396 N.W.2d 302, 303 (N.D. 1986) (arresting officer testified that licensee "`did not adequately submit to the test,' and licensee refused second test saying `I've had enough of this run a round [sic].'"); Jones v. Motor Vehicles Div., 90 Or. App. 143, 750 P.2d 1203, 1204 (1988) (licensee "was `acting like he was blowing into' the instrument, but `it didn't appear that his cheeks were filling up with air as if he was blowing into the mouthpiece.
Under the express consent statute, any driver who is required to submit to drug testing is expressly required to cooperate with any drug test requested, and a driver's failure to cooperate is expressly deemed to be a refusal to submit to testing. Sections 42-4-1202(3)(a)(III) and (IV), C.R.S. (1992 Cum. Supp.); see also Baker v. State, 42 Colo. App. 133, 593 P.2d 1384 (1979) (holding that uncooperative conduct by a licensee in failing to complete a breath test is tantamount to a refusal). In addition, the determination by the trier of fact whether a driver refused testing for purposes of the revocation statute is based solely on the objective standard of the driver's words and other external manifestations of willingness or unwillingness to take a test, rather than on a subjective standard, such as the driver's state of mind. Dolan v. Rust, 195 Colo. 173, 576 P.2d 560 (1978); Alford v. Tipton, 822 P.2d 513 (Colo.App. 1991).
That a deficient breath sample prompted a (perhaps unprovable) charge of driving with a blood alcohol level in excess of the statutory limit and that it could be reanalyzed by an independent expert are simply irrelevant to the issue of whether such a sample complied with the statutory obligation to take a breath test. See Ontiveros v. State Department of Transportation, supra; Baker v. State Department of Revenue, Motor Vehicle Division, 42 Colo. App. 133, 593 P.2d 1384 (1979). Nothing prevented the appellee from offering evidence at the hearing that the sample provided was not deficient. He did not do so.
To permit satisfaction of the implied consent law by partially taking the test would give suspects "the best of both worlds," escaping sanction under the implied consent law while charading through an unuseable test. The Colorado Court of Appeals dealt with a similar situation in Baker v. State Department of Revenue, Motor Vehicle Division, 42 Colo. App. 133, 593 P.2d 1384 (1979). There, defendant furnished an insufficient breath sample permitting the state to obtain only an estimate of blood alcohol content.
That plaintiff sometime later agreed to take a breath test for some other purpose, the results of which he was informed would not be used against him, does not convert his refusal into an acceptance. Cf. Zahtila v. Department of Revenue, 39 Colo. App. 8, 560 P.2d 847 (1977); Baker v. Department of Revenue, 42 Colo. App. 133, 593 P.2d 1384 (1979). [1] The purpose of the implied consent law is to obtain scientific evidence for use in the prosecution of the drunk driver.