dissenting.
I respectfully dissent and would affirm the trial court. Minn.Stat. § 169.123, subd. 2 (1992) indicates the implied consent test shall be administered at the direction of a peace officer. I agree with the majority that an initial refusal by a driver may not be cured by the driver’s subsequent agreement to be tested. See Parsons v. Commissioner of Pub. Safety, 488 N.W.2d 500, 502-03 (Minn.1992). I also agree that a police officer is not required to offer a driver a second opportunity to be tested. Palbicki v. Commissioner of Pub. Safety, 347 N.W.2d 512, 515 (Minn.App.1984). However, Minnesota law recognizes a police officer may offer the driver an opportunity to cure the refusal. Anderson v. Commissioner of Pub. Safety, 441 N.W.2d 126, 128 (Minn.App.1989); Smith v. Commissioner of Pub. Safety, 401 N.W.2d 414, 416 (Minn.App.1987), pet. for rev. denied (Minn. Apr. 29, 1987).
I agree with the trial court that here, taken in the context of the entire factual setting, respondent’s initial refusal was cured by subsequent actions. Respondent was stopped while driving, transported to the police station, read the implied consent advisory, and asked to submit to a breath test. He requested to use a bathroom before proceeding. Officer Gjerde refused his request. Respondent is a medical student from Nigeria. This incident occurred during the week of the Rodney King trial. Respondent testified he refused to submit *324to the test because he feared he would not receive a fair result. Officer Gjerde recorded respondent’s refusal and then transported him to the Hennepin County Detoxification Center. An off-duty Minneapolis police officer, Sergeant Earl Stroshane, was working security at the center. Sergeant Stroshane was in his Minneapolis police uniform. After observing respondent, Stroshane came to the conclusion he might not be under the influence and encouraged respondent to take a test. There is nothing in the record to indicate respondent assumed the uniformed officer at the detoxification center had any different authority than the first officer who talked to him.
In essence, the trial court found that the State of Minnesota offered respondent a chance to cure the earlier refusal, which respondent took. I leave to the trial court to decide the weight and credibility to give respondent’s and Officer Stroshane’s version of the facts. Both testified, and the trial court, as factfinder, is owed great deference in assessing their credibility. I see no reason to interfere with the trial court’s judgment call that respondent cured his earlier refusal after being given the opportunity by another officer clothed with apparent authority.
On the second issue, the type of test respondent took at the center, the majority holds that the rule and the statute require that all tests must meet the requirements of the rules. I disagree. A driver is not going to know what tests meet the technical requirements. The burden of producing a proper test is on the state when attempting to revoke a citizen’s driving privileges. Respondent should not be penalized because the test he consented to take from a police officer did not meet the technical standards of the rules. A driver should not be penalized because the state offers a test, the driver takes it, and later another arm of the state says, “Well, that was not a proper test.” Disputes may arise between the state and a driver as to credibility of a test result, or even its admissibility. But the state cannot claim a driver’s consent to take a test, which is offered by a law enforcement officer and later ruled invalid because of foundation problems, amounts to a refusal. Common sense tells us the state cannot retroactively call honest consent a refusal because the offeror, the state, did not have a valid test in hand.
To understand this, just reverse the order of the tests. Assume that Officer Gjerde had initially offered respondent the exact same test that he took later at the detoxification center. If the issue of the test’s validity arose, the state could not argue that respondent’s consent to take the test is now a “refusal,” with all the serious implications a test refusal carries, because Gjerde offered something other than the Breathalyzer 900 or 900A, or the Intoxilyzer 5000.
Appellant further argues that somehow Stenehjem’s lack of training by the Commissioner of Public Safety in the administration of breath tests bolsters respondent’s “refusal.” Apply the same logic. Assume that Gjerde’s training had been the same as Stenehjem, the health care assistant. The state would look foolish claiming that respondent’s consent to a test offered by Gjerde is a refusal because Gjerde had not received training approved by the Commissioner. Again, the validity or admissibility of the test administered by Ste-nehjem may be an issue, but the issue cannot be “refusal.”
This case only has one issue. From the totality of the facts, did the trial court erroneously find the state exercised its option to give a driver a second chance to cure an earlier refusal? I find no error, and would affirm the trial court.