concurring.
Although I join in the court’s opinion, I believe it necessary to emphasize the limited scope of our holding concerning Suiter’s refusal to take the Intoximeter test.
Police officers dealing with individuals who have been arrested for DWI can only be expected to act within- the realm of the possible. When, as in this case, a defendant’s actions prevent the police, despite good faith efforts, from completing the implied consent warnings, substantial compliance with the requirement to give the warnings may be found. Because Suiter’s actions precluded a complete reading of the implied consent warnings, the police were excused from further attempts to apprise Suiter of the consequences of refusing to take a breath test; Suiter would be es-topped from asserting his lack of knowledge of the consequences as a defense.
Nevertheless, the fact that the police substantially complied with the requirement of giving Suiter notice of the consequences of a refusal does not resolve the problem. The refusal statute requires that the defendant be given an opportunity to take a breath test after the implied consent warnings have been read. The statutory language thus mandates that an express request to take the test be made following the implied consent warnings.
In the present case, although Suiter’s behavior precluded a complete reading of the implied consent warnings, there is nothing to suggest that, after being thwarted in their efforts to read the warnings, the police could not have specifically requested Suiter to take the test. To comply with the statutory requirements, the police need only have asked Suiter, once again, to submit to an Intoximeter test. A subsequent refusal — whether by word or conduct— would have been grounds for prosecution and conviction.
Admittedly, in the context of the present case, it might appear unduly formalistic to insist that an express request to submit to a breath test was necessary. Given Sui-ter’s initial refusal to take the test and his conduct when the police attempted to read the implied consent warnings, an additional request would likely have been futile; Sui-ter would inevitably have refused.
Nevertheless, a defendant may properly be convicted of a crime only after it has been committed. The crime of refusing to take a breath test is a unique statutory creation. The crime occurs when the defendant refuses a request to take the test; that request must be made after the implied consent warning is given.
To excuse compliance with the requirement of a specific request on grounds that an uncooperative defendant has already refused once and would likely refuse again would in effect allow the defendant to be convicted on the assumption that he would inevitably have committed the crime had he been given the opportunity to do so.