dissenting. When the majority opinion rules as a matter of law that the appellee in the *39instant cause refused to submit to a chemical test for intoxication, it extends the evidentiary indicia of refusal established by this court in Hoban v. Rice (1971), 25 Ohio St. 2d 111, and places an evidentiary burden upon the licensee in an R. C. 4511.191 hearing which is neither fair nor warranted by the purpose of the statute.
Paragraph three of the syllabus in Hoban v. Bice, supra, at page 111, defines refusal in the following maimer:
“For the purpose of R. C. 4511.191, n refusal to submit to a chemical test of the blood, breath or urine will occur where a person, by his acts, words, or general conduct, manifests an unwillingness to submit to the test. * * *” (Emphasis added.)
The only evidence of refusal introduced at appellee’s R. C. 4511.191 hearing was the patrolman’s testimony that he thought appellee “was holding his tongue” on the breathalyzer tube while he was “trying to blow into it.”6 In contrast, the rest of the evidence indicated that appellee verbally assented to take the breathalyzer test; that he attempted to blow into the breathalyzer tube over a dozen times; that he asked the patrolman to demonstrate the use of the breathalyzer for him; that he appeared to be generally cooperative and truthful with the policeman; and that he willingly participated in all the nonchemical tests for intoxication which the officer proposed.
Under Hoban, evidence of refusal is determined by the licensee’s “acts, words or general conduct.” In the instant cause, appellee’s “acts, words or general conduct” did not manifest “an unwillingness” to take the test. Since the appellee did not refuse under the indicia set forth in Hoban, the majority looks to other evidence — the inability of either party to demonstrate whether the breathalyzer was functioning properly when appellee took the test — to arrive at its finding. By finding this other evidence sufficient to indicate refusal, the majority extends the indicia of refusal set forth in paragraph three of the Hoban syllabus by requiring the licensee in an R. C. 4511.191 hearing to prove *40that the . breathalyzer was not functioning when he took the test. Obviously the licensee is at a marked disadvantage,under such an extension of the Hobcm opinion.
Moreover, the new burdens placed on the licensee, by the majority opinion fail to effectuate the intention of the statute. The purpose of R. C. 4511.191 is not'merely to discourage drunken driving by suspending the licenses of those arrested for driving while under the influence of alcohol. Under R. C. 4511.99 such persons are already subject to a three-days’ imprisonment.; and a person may. have his license suspended under R. C, 4511.191 for refusal to submit to the test, even though he is cleared on the drunken driving charge. The purpose of R. C. 4511.191 is to discourage any person from refusing to take the chemical intoxication tests when he is arrested for drunken driving. Punishing these persons for their inability to explain why the machine did not function may make it easier to suspend licenses, but it does not deter refusals.
Because the majority opinion alters Ohio law in a manner which is unfair to licensees and which does not further the purpose of R. C. 4511.191,1 dissent.
Locheb, J., concurs in the foregoing dissenting opinion.
See footnote No. 4.