It is possible to use experts to extrapolate the BAC many hours after a person's last drink. See Lund v. Hjelle, 224 N.W.2d 552, 557 (N.D. 1974); see also Wanna v. Miller, 136 N.W.2d 563, 566-68 (N.D. 1965) (holding admissible a blood test taken eight hours after driver's last drink). However, an essential aspect of the New Mexico Implied Consent Act is to make hearings expedient and to avoid the need for expert testimony.

We reject respondent's arguments. The heart of the petition, which we find persuasive, begins with the holding in Lund v. Hjelle, 224 N.W.2d 552, 557 (N.D. 1974): Since the accuracy of a chemical test under [the Implied Consent Law] does not depend upon its being administered immediately after an arrest, accident or other event, and thus a delay for a reasonable period of time while an arrested person considers or reconsiders a decision whether or not to submit to a chemical test will not frustrate the object of the legislature in enacting [the Implied Consent Law], we hold that where, as here, one who is arrested for driving while under the influence of intoxicating liquor first refuse[s] to submit to a chemical test to determine the alcoholic content of his blood and later changes his mind and requests a chemical blood test, the subsequent consent to take the test cures the prior first refusal when the request to take the test is made within a reasonable time after the prior first refusal; when such a test administered upon the subsequent consent would still be accurate; when testing equipment or facilities are still readily available; whe

DuPaul, 487 N.W.2d at 595. Krehlik argues that, pursuant to Lund v. Hjelle, 224 N.W.2d 552 (N.D. 1974), an individual who has refused to submit to chemical testing under chapter 39-20, NDCC, can cure a refusal by subsequently consenting to take the test. In Lund, we held:

The time was between 3:25 and 3:30 a.m. The officer advised Kotas and his attorney that his prior actions had constituted a refusal, and that he would not transport him to the hospital for the blood test. After hearing this testimony the circuit court, relying upon the decision of Lund v. Hjelle, 224 N.W.2d 552 (N.D. 1974), found that the qualified refusal given by Kotas had been rescinded within a reasonable time, and that his license could not be revoked under SDCL 32-23-11. The issues involved in this appeal were fully considered and resolved against respondent Kotas by the opinion of this court in Peterson v. State, S.D., 261 N.W.2d 405, filed December 30, 1977. For the reasons set out in Peterson we hold that Kotas' conduct constituted, in law, a refusal of the blood test requested by Officer Weiss and that his driver's license was therefore properly revoked.

Moore substantially followed North Dakota's approach on this issue. Lund v. Hjelle, 224 N.W.2d 552 (N.D. 1974); see also Pruitt v. State, Dep't of Pub. Safety, 825 P.2d 887 (Alaska 1992); Zahtila v. Motor Vehicle Div., Dep't of Revenue, 39 Colo. App. 8, 560 P.2d 847 (1977) (unless delay would materially affect test results, a subsequent consent may cure a prior refusal); State v. Ginnetti, 232 N.J. Super. 378, 556 A.2d 1339 (Law Div. 1989) (initial refusal cured by subsequent consent where momentary delay would not affect integrity of procedure or do violence to purpose of Implied Consent Law). But see Zidell v. Bright, 264 Cal.App.2d 867, 71 Cal.Rptr. 111 (1968): Robertson v. State ex rel. Lester, 501 P.2d 1099 (Okla.

KDR attempts to flesh out the Standish opinion to divine a specific and unique meaning in the language employed in the first and last rules. Although Lund v. Hjelle, 224 N.W.2d 552 (N.D. 1974), was simply included in Standish's chain cite, without any discussion or analysis, KDR speculates that the Standish court lifted the Kansas rules for rescission from that North Dakota decision. Then, KDR argues that certain modifications to the Lund language manifest an intent by this court to make the rules more restrictive in this state. Specifically, KDR points out that Lund said the postrefusal test request must be "made within a reasonable time after the prior first refusal."

A driver who changes his mind and requests a chemical test can cure a prior refusal. Grosgebauer, 2008 ND 75, ¶ 13, 747 N.W.2d 510 (citing Lund v. Hjelle, 224 N.W.2d 552, 557 (N.D. 1974)). This Court has stated:

[¶ 3] The Department sought to revoke Houn's driving privileges for one year because he refused to take a blood-alcohol test. An administrative hearing officer decided Houn's attempt to cure his prior refusal to take a test was not timely under the requirements of Lund v. Hjelle, 224 N.W.2d 552 (N.D. 1974). The hearing officer found:

In support of these arguments Pruitt draws on cases from other jurisdictions that have adopted the "flexible" rule. E.g., Zahtila v. Motor Vehicle Div., 39 Colo. App. 8, 560 P.2d 847 (1977) (refusal may be changed into consent unless the delay will materially affect the results of the test); Larmer v. State Dep't of Highway Safety, 522 So.2d 941 (Fla. Dist. Ct. App. 1988) (defendant may change initial refusal to take a breath test to a consent by changing his mind moments later and clearly stating it); State v. Moore, 62 Haw. 301, 614 P.2d 931 (1980) (defendant can cure a refusal unless a delay would materially affect the test results or prove substantially inconvenient to administer); Lund v. Hjelle, 224 N.W.2d 552 (N.D. 1974) (a subsequent consent cures a prior refusal when a request to take the test is made within a reasonable amount of time after the prior refusal). The state argues that once a motorist makes an informed decision to refuse to take a breath test, that person should be bound by the decision and not be permitted to later cure the refusal by agreeing to take the test.

An arresting officer is not the only law enforcement official who can request that the arrested person submit to a test for intoxication. Neset v. North Dakota State Highway Comm'r, 388 N.W.2d 860 (N.D. 1986). I therefore conclude that the consent to take the test, although the request was made by the BIA officers rather than the State officer because of a mistake of fact as to the place of arrest, negates the effect of the original refusal to submit to the test. Lund v. Hjelle, 224 N.W.2d 552 (N.D. 1974) [subsequent consent to take test cures prior refusal when accuracy of test is not impaired]. Furthermore, I conclude that where that test produced results inadequate for State purposes, through no fault of Davis, a request to retake the test, made on the Reservation, by the State officer is a request made without jurisdiction to do so and therefore the refusal to retake the test was a nullity and cannot be considered a refusal to take a test within the meaning of section 39-20-04, NDCC. GIERKE and MESCHKE, JJ., concur.