dissenting.
I respectfully dissent because the trial court erred in refusing to give the request*680ed instruction on whether Powers voluntarily consented to the breath test. I agree with the majority that Powers twice consented to a breath test, after expressing his preference for a blood test, before stating, “I don’t believe a breath test is legal, but I’ll give a blood test.” The majority concludes that this evidence failed to raise an issue that the breath test was involuntary because “it was not a withdrawal of his twice-given consent but, rather, was a continued reflection of his opinion and belief that a blood test was better than a breath test.” I believe that it could reasonably be argued, and a jury could reasonably find, that Powers’s final statement was an inartful way of declining the breath test in favor of a blood test. Because I feel that the trial court erred by not giving an instruction on an issue that was raised by the evidence and that the failure to give such an instruction was harmful to Powers, I would sustain Powers’s second issue on appeal, reverse the judgment of the trial court, and remand for a new trial.