(dissenting).
I respectfully dissent. I am not persuaded that appellant was physically unable to provide an adequate breath sample.
The issue of physical inability is a question of fact and the trial court’s findings will not be reversed unless clearly erroneous. Burke v. Commissioner of Public Safety, 381 N.W.2d 903, 904 (Minn.Ct.App.1986). Due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. Minn.R.Civ.P. 52.01. Here, the majority is substituting its judgment for that of the trial court.
The trial court found that appellant’s alleged physical inability was insufficient to meet the criteria justifying refusal. Claims substantially similar to appellant's have been rejected in a number of cases in which this court has held that the driver has failed to meet his/her burden of proof. See, e.g., Benson v. Commissioner of Public Safety, 397 N.W.2d 452, 453 (Minn.Ct.App.1986) (driver had back problems and lung infection); Lewandowski v. Tschida, 396 N.W.2d 711, 713 (Minn.Ct.App.1986) (driver was a smoker with a cold, scratchy throat, fever, and slight respiratory problem who had worked eight hours and was tired); Bale v. Commissioner of Public Safety, 385 N.W.2d 870, 873 (Minn.Ct.App.
*5931986) (driver was a heavy smoker who was upset, nervous and crying). All of these same types of difficulties seem to have troubled appellant.
The majority appears to rely on the fact that appellant voluntarily submitted to a subsequent blood test and its result as proof of her physical inability to provide an adequate breath sample. That is not the standard by which to determine if there was a refusal. In Lewandowski, we held that “appellant’s willingness to take another test does not compel a finding that the trial court’s determination was clearly erroneous.” Id. at 714 (emphasis supplied).
Here, the majority does not distinguish between the criminal offense of DWI and the implied consent case, which is civil in nature. Determinations of issues under the two are totally separate and distinct and have different criteria and standards. See State v. Hanson, 356 N.W.2d 689, 692 (Minn.1984) (“As we have made clear in a number of cases the revocation of a driver’s license under the implied consent law, is a civil penalty imposed administratively regardless of the outcome of any criminal proceeding under section 169.121 arising from the same incident. * * * the fact that [appellant] was acquitted of the criminal charge * * * does not render the prior implied consent revocation based on the same incident invalid.”) Here, the majority is applying the DWI criminal criteria to the civil proceeding of implied consent.
As to the admissibility of the results of the blood test, I believe the evidence would be relevant if this were a criminal case. Here, however, we are not asked to decide appellant’s guilt or innocence, but merely whether the trial court erred in determining that appellant failed to meet her burden of proving that she was physically unable to provide an adequate breath sample.
I would affirm.