☢ test - Í

court must evaluate the officer’s actions to determine if the officer acted reasonably in the situation and whether the procedure was applied in a fair manner,’ ” quoting State v. Highsmith , 190 Ga.App. 838, 839, 380 S.E.2d 272 (1989). In instructing defendant to blow into the machine where he had unequiviocally revoked his implied consent, “[w]e cannot deem such a procedure to be fair or such actions by an officer to be reasonable.” Rescission of a refusal does not necessarily require an “affirmative request that a test be given.” Two judges dissent, contending that other evidence authorized trial court to find that defendant rescinded his refusal. Accord, State v. Adams , 270 Ga.App. 878, 609 S.E.2d 378 (December 13, 2004) (confused defendant was read warning, said he didn’t understand, never expressly consented to take test, but took it when placed in front of machine and told to blow; said he thought he had to. Trial court properly suppressed results.) Distinguished in Stapleton (April 13, 2006), above (after initial refusal at scene, officer re-asked at station, without coercion, also without re-reading rights; test results properly admitted); State v. Quezada , 295 Ga.App. 522, 672 S.E.2d 497 (January 13, 2009) (while filling out paperwork regarding refusal at police station, officer told defendant to let him know if she changed her mind about breath test, a “fair and reasonable” procedure); Page v. State , 296 Ga.App. 431, 674 S.E.2d 654 (March 4, 2009) (among other things, officer answered defendant’s questions, read implied consent three times, and allowed defendant to call her attorney); State v. Barnes , 331 Ga.App. 631, 770 S.E.2d 890 (March 27, 2015) (remanded to determine “whether the officer's actions were reasonable and fair under the totality of circumstances”). Compare Doyle (September 18, 2006), above (no express verbal consent required where defendant doesn’t refuse and in fact blows into machine). Compare Doyle (September 18, 2006), above (no express verbal consent required where defendant doesn’t refuse and in fact blows into machine). Pinch v. State, 265 Ga.App. 1, 593 S.E.2d 1 (December 2, 2003). Regarding DUI defendant’s refusal to take breath test, prosecutor argued to the jury, “‘it’s possible that he could have gone home that night’” if he had taken the test, and “‘there was a chance to show sobriety.’” Court properly sustained objections to these arguments as being burden-shifting, but was not required to grant mistrial; curative instructions to the jury were sufficient. Gantt v. State, 263 Ga.App. 102, 587 S.E.2d 255 (September 8, 2003). In her DUI-drug prosecution, “Gantt successfully moved to suppress the results of the chemical tests by contending that her actions were ‘a nonverbal response’ indicating that she was ‘trying to exercise her right to refuse.’” The court thus ruled out the test results, but allowed the State to present evidence of refusal instead. On appeal, Gantt contends the refusal evidence should not have been admitted, contending she was not capable of refusing at the time. Held, the trial court properly admitted the refusal evidence. “For three reasons, we find she cannot now reverse her position and argue that she did not refuse. First, Gantt is now judicially estopped from reversing the position she previously took and asserting the contrary position that she did not refuse. Under the doctrine of judicial estoppel, a party is precluded from asserting a position in a judicial proceeding that is inconsistent with a position that party previously asserted in a prior proceeding. Stinson v. State, 256 Ga.App. 902, 903(1), 569 S.E.2d 858 (2002). Second, a party may not complain on appeal of a ruling to which he or she contributed or in which he or she acquiesced. Blackford v. State, 251 Ga.App. 324, 327, 554 S.E.2d 290 (2001). Here, Gantt not only acquiesced in the trial court’s ruling, she actively sought it. Third, for policy reasons we cannot accept Gantt’s argument. We agree with the State that if Gantt’s argument were adopted, the most dangerous drivers – those who are incoherent – would be the most likely to avoid conviction.” Judicial estoppel can’t be applied to the State or the defendant in a criminal case, Roberts v. State , 278 Ga. 610, 604 S.E.2d 781 (November 8, 2004). Walker v. State, 262 Ga.App. 872, 586 S.E.2d 757 (August 25, 2003). “An intoxilyzer’s ‘insufficient sample’ reading on its face fails to produce a BAC, and an officer/operator is not required either by statute or by GBI guidelines to go behind the ‘insufficient sample’ reading and perform an evaluation of the numeric air flow volume, which may vary from subject to subject. An intoxilyzer operator ‘is not required to have an expert’s knowledge of how the machine works.’” Baird v. State, 260 Ga.App. 661, 580 S.E.2d 650 (March 28, 2003). Court erred in charging the jury as follows: “‘the refusal itself may be considered as positive evidence creating an inference that the test would show the presence of alcohol or other prohibited substances which impaired his driving ” (emphasis in original). Conflicts with Walker, Vanorsdall, Johnson and Lucas, all cited below. Accord with Baird, Duelmer v. State, 265 Ga.App. 342,593 S.E.2d 878 (January 29, 2004); Shaheed (December 1, 2004), above. State v. Boger, 253 Ga.App. 412, 559 S.E.2d 176 (January 24, 2002). Defendant, as officer attempted to administer him a hand-held alcosensor, requested an attorney. Officer informed him that he did not have a right to an attorney until “after I arrest you and take you down to the jail and that good stuff.” Defendant never would submit to the alcosensor and was arrested and read implied consent notice. Defendant then refused to submit to the Intoxilyzer machine without an attorney. Held, from what the officer told defendant, defendant’s refusal to continue the alcosensor test could not have