dissenting.
I must respectfully dissent. The majority determined that KRS 186.565(3) only permits a person to refuse to take a breathalyzer test twice; after the second refusal, one cannot change his mind and submit to the test. I find this ruling to be in direct opposition to the very purpose for which the legislature enacted KRS 186.565(3).
Drinking and driving is a serious problem facing every state in the nation. To confront this problem, many states have enacted statutes similar to Kentucky’s “Implied Consent Law.” The purpose in enacting such statutes is to preserve the best available evidence of one’s blood alcohol content so that it may be used during the individual’s trial for driving under the influence. The majority opinion mandates rigid compliance to the terms of KRS 186.-*825565(3). I believe a more logical and fair interpretation is followed by our sister states. Matter of Smith, 770 P.2d 817 (Id.App.1989); Larmer v. State, 522 So.2d 941 (Fla.App.1988); People v. Naseef, 127 Ill.App.3d 70, 82 Ill.Dec. 204, 468 N.E.2d 466 (1984); Gaunt v. Motor Vehicle Division, 136 Ariz. 424, 666 P.2d 524 (Ariz.App.1983).
The “flexible rule” followed by our sister states permits a subsequent consent to a breathalyzer test unless the delay would materially affect the test results. Smith, supra. The rationale behind this rule is that it is better to have a delayed test result than no result whatsoever. Gaunt, supra. Where neither party is prejudiced by the subsequent consent, a reasonable period to reconsider one’s refusal should be allowed since the accuracy of the test itself does not demand the breathalyzer exam be performed immediately. Lund v. Hjelle, 224 N.W.2d 552 (N.D.1974).
Public policy in Kentucky would be better served by permitting the scientific evidence provided by state-approved tests to be used at trial, even if such tests were conducted following a second refusal by the charged party. However, the time within which one could change his mind should be limited to that which is reasonable under all the circumstances of a particular case. Here, the appellant changed her mind after only ten minutes. The arresting officer was still on the premises, and there was no evidence that the appellant did anything to compromise the results of a breathalyzer test.
While the language of KRS 186.565(3) permits two refusals by a person under arrest, I would recommend that this Court adopt the rule whereby a person can subsequently consent to the breathalyzer test within a reasonable time, if the results of such a test would not be materially affected by the delay. Such a rule protects the rights of the accused, provides the Commonwealth with the best available evidence of the party’s blood alcohol content, and furthers the public policy behind the enactment of KRS 186.565(3). For these reasons, I must dissent,