☢ test - Í

been based on a belief that he was entitled to an attorney prior to taking the test and the trial court erred in excluding evidence of defendant’s failure to submit. However, further held, trial court affirmed in excluding defendant’s refusal to submit to the Intoxilyzer test as the officer’s statement, although substantially correct, was misleading in that after defendant was arrested and at the jail, he believed that he was entitled to counsel prior to complying with the implied consent law and taking the Intoxilyzer test. State v. Lentsch, 252 Ga.App. 655, 556 S.E.2d 248 (November 8, 2001). Reversal of trial court’s grant of motion to suppress. The results of state administered breath tests are admissible, including a defendant’s refusal to take such a test, notwithstanding that a suspect is in custody when the test is given and no Miranda warnings are given. The results of a breath test are not testimonial or communicative evidence. Swain v. State, 251 Ga.App. 110, 552 S.E.2d 880 (July 20, 2001). DUI and related convictions affirmed. Trial court is not bound by the Administrative Law Judge’s decision, during a defendant’s license suspension hearing, that a defendant did not refuse to consent to chemical testing when the State was precluded from fully litigating the refusal issue during the summary administrative hearing. Cited with approval, Malloy v. State , 293 Ga. 350, 744 S.E.2d 778 (June 17, 2013). Matheson v. State, 249 Ga.App. 200, 547 S.E.2d 774 (April 12, 2001). DUI and related convictions affirmed. “Matheson’s refusal to submit to an alco-sensor test and to a later chemical test of her breath is circumstantial evidence of her guilt.” McCafferty v. State, 248 Ga.App. 13, 545 S.E.2d 91 (January 24, 2001). Defendant was arrested and charged with several traffic violations, including DUI. At a hearing on a motion in limine filed by Defendant, evidence tended to show that Defendant refused to take a breath test after reading of implied consent. After Defendant was booked at the jail, the officer left and returned to his duties. Somewhere between 30 minutes and 2 hours after the officer left the jail, the Defendant requested to be given the breath test and to be taken to get a blood test. Held, the trial court did not err in finding that Defendant’s withdrawal of his refusal was ineffective. To be effective, the withdrawal must be (1) within a very short and reasonable time after the prior first refusal; (2) when a test administered upon the subsequent consent would still be accurate; (3) when testing equipment is still readily available; (4) when honoring the request would result in no substantial inconvenience or expense to the police; and (5) when the individual requesting the test has been in the custody of the arresting officer and under observation for the whole time since the arrest. Here the defendant had not been in the arresting officer’s custody the entire time, nor was it error to find that the time was not a very short and reasonable after the first refusal. As to withdrawal of refusal, see also Howell (March 24, 2004), above. Further held, that it was not error for the trial court to prohibit the defendant from offering evidence of the attempted withdrawal of the refusal at trial, since the issue was fully litigated during the hearing on the motion in limine. See Thompson v. State , 234 Ga.App. 74, 506 S.E.2d 201 (1998). However, the trial court was reversed for ruling that the defendant could present no evidence at trial about his demeanor at the jail, as same would be relevant to his sole defense: that he was not, in fact, a less safe driver. Hunt v. State, 247 Ga.App. 464, 542 S.E.2d 591 (November 21, 2000). DUI and related convictions affirmed; “evidence of a defendant’s failure to provide an adequate breath sample was admissible to demonstrate a refusal to submit meaningfully to testing.” When the officer attempted to administer the breath test following defendant’s DUI arrest, Hunt pretended to blow into the instrument by puffing out his cheeks, but he failed to fog up the tube. The defendant claimed that the machine was not working properly. The police officer successfully completed a test cycle, and once again attempted to administer the test to the defendant. The defendant gave a series of small puffs which were insufficient to register on the machine (after repeated instruction by the officer to exhale continuously). The officer then charged the defendant with DUI by refusal to submit to the testing. The defendant claims that the trial court erred in denying a pretrial motion to permit the jury to test the Intox 5000, by allowing the jurors to blow into the breath machine in order for them to determine the volume of air and breathing effort required to operate the machine. The Court held that the trial court did not abuse its discretion to disallow this action. See also Komala (March 25, 1999), below . Fairbanks v. State, 244 Ga.App. 123, 534 S.E.2d 529 (May 8, 2000). DUI conviction affirmed. “Fairbanks’ response that he wanted an attorney each time the officer asked if he would submit to a test amounts to a refusal to submit to testing,” citing Miles v. State , 236 Ga.App. 632, 633(1), 513 S.E.2d 39 (1999) (refusal to respond amounts to refusal). “We see no reason why Fairbanks’ repeated demands for an attorney in response to the officer’s requests to take such a test should be treated any differently.” Disapproved on other grounds, Handschuh v. State , 270 Ga.App. 676, 607 S.E.2d 899 (2004).