Defendant was arrested for driving while under the influence of intoxicating liquor (DUI) in violation of 23 V.S.A. § 1201(a)(2). He refused to submit to an evidentiary breath test, consent for which is implied under 23 V.S.A. § 1202(a). Defendant received a notice of suspension of his operator’s license under 23 V.S.A. § 1205(b), and then requested a district court hearing to contest the suspension, pursuant to 23 V.S.A. § 1205(c)(1). At the suspension hearing the district court found that defendant had not prevailed on any of the issues raised under 23 V.S.A. § 1205(f), and forwarded its findings and report to the commissioner of motor vehicles, as provided under 23 V.S.A. § 1205(g), who confirmed the suspension.
Defendant brings this appeal under 23 V.S.A. § 1205(i). The sole issue is whether a form used by the processing officer to record what he advised defendant and defendant’s responses was deficient. The form did not indicate that defendant was advised at the time he was asked to take the breath test of his right to consult with an attorney at public expense before making the decision. He concedes the form did advise him of his right to consult an attorney, as required under 23 V.S.A. § 1202(e) and (d)(4).
We held in State v. Duff, 136 Vt. 537, 539, 394 A.2d 1145, 1146 (1978), that 23 V.S.A. § 1202(b) must be read in pari materia with 13 V.S.A. § 5234 of the public defender statute. And as we said in State v. Gracey, 140 Vt. 199, 201, 436 A.2d 741, 743 (1981), “a person asked to take a breath test must be informed of his right to consult with an attorney before making a decision” and must be “informed that a needy person may consult with an attorney at public expense.” See also State v. Garvey, 157 Vt. 105, 107, 595 A.2d 267, 268 (1991) (notwithstanding defendant’s financial status, public defender must be notified, unless waived or another attorney contacted, before defendant can be required to make a breath-test decision).
But missing from defendant’s claim at his district court hearing or in his brief here is any assertion that the deficiency in the form had any bearing on his refusal to take the test. We assume the advice given defendant was no more expansive than what is contained in the form. However, defendant never contended that lack of advice about a free consultation with a lawyer was in any fashion connected with his refusal. For all we know, defendant’s refusal could have been predicated upon reasons in no way related to a lack of consultation with a lawyer. The State has the burden to prove a refusal, and that burden does not shift to defendant. But defendant had the burden of production on the issue of prejudice, that is, he had to introduce some evidence that any deficiency in the advice he received was prejudicial. This he did not do.
Affirmed.