This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-96-1400

Wade Edward Baribeau, petitioner,

Appellant,

vs.

Commissioner of Public Safety,

Respondent.

Filed December 31, 1996

Affirmed

Klaphake, Judge

Anoka County District Court

File No. C0-96-4110

Hubert H. Humphrey, III, Attorney General, Steven H. Alpert, Assistant Attorney General,1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (For Respondent)

Thomas A. Rothstein, Harlan Goulette, Allan H. Caplan & Associates, P.A., 525 Lumber Exchange Building, Ten South Fifth Street, Minneapolis, MN 55402 (For Appellant)

Considered and decided by Klaphake, Presiding Judge, Schumacher, Judge, and Amundson, Judge.

U N P U B L I S H E D O P I N I O N

KLAPHAKE, Judge

Appellant Wade Edward Baribeau contests the district court's order sustaining revocation of his driving privileges under Minn. Stat. § 169.123 (1994). He argues the district court improperly determined that he refused the Intoxilyzer test because the police officer administering his test terminated the process prior to the completion of a machine test cycle. Because the officer was not required to complete the full testing cycle after appellant unequivocally refused to take the test, we conclude that the district court properly sustained the revocation.

D E C I S I O N

Upon request by a police officer, the failure of a driver to provide two separate, sequential, and adequate breath samples for intoxication testing constitutes a refusal. Minn. Stat. § 169.123, subd. 2b(c) (1994). Refusing testing results in a one year license revocation under the implied consent law. Minn. Stat. § 169.123, subd. 4 (1994). Once a driver refuses to submit to testing, no test shall be given. Id.

In the instant case, appellant received the implied consent advisory and agreed to take the Intoxilyzer test. Appellant went to the Intoxilyzer machine, but refused the mouthpiece. When twice asked by the officer if he was going to take the test, he twice stated, "No, I want an attorney." We conclude this conduct constituted a refusal to submit to testing. The fact that appellant also asked for an attorney does not change the result, and appellant did not raise the right to counsel issue in this appeal.

Appellant urges this court to adhere to the rule that

[o]nce testing has begun, the driver is entitled to have the full four minutes so the machine can determine the adequacy of the sample.

Genia v. Commissioner of Pub. Safety, 382 N.W.2d 284, 286, Minn. App. 1986). This rule takes the subjective decision of whether a driver refused testing out of the hands of a police officer by allowing the machine to determine objectively the adequacy of a breath sample. See Huber v. Commissioner of Pub. Safety, 382 N.W.2d 573, 575 (Minn. App. 1986) (interpreting Minn. Stat. § 169.123, subd. 2b). Where the driver unequivocally refuses to submit to testing, however, the driver is not entitled to a four-minute test because adequacy of the sample is irrelevant. Therefore, we affirm the district court's decision sustaining revocation.

Affirmed.